Floods and Water (Amendment etc.) (EU Exit) Regulations 2019 - Motion to Approve

– in the House of Lords at 6:25 pm on 22nd January 2019.

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Moved by Lord Gardiner of Kimble

That the draft Regulations laid before the House on 5 December 2018 be approved.

Photo of Lord Gardiner of Kimble Lord Gardiner of Kimble The Parliamentary Under-Secretary of State for Environment, Food and Rural Affairs

My Lords, the instrument before your Lordships makes only technical changes to retained EU law to ensure that floods and water legislation will continue to function when the UK has left the EU. I emphasise that the instrument corrects technical deficiencies and creates no new policy. In addition, we have consulted with the devolved Administrations on the instrument, and they have given consent where appropriate.

Part 1 makes introductory provision about the citation, commencement, territorial extent and application of the instrument. Part 2 makes operability amendments to some primary legislation, such as the Water Act 1989, which applies to England and Wales only. The amendments replace the words “EU obligation” with “retained EU obligations” to reflect the change after the exit from the EU. They also address the use of the term “environmental objectives”, which is defined in the water framework directive. The amendments instead define that term by reference to our domestic legislation which implements the water framework directive rather than the EU directive itself.

Part 3 amends technical deficiencies in secondary legislation, and I will highlight the key types of amendments. Regarding the sludge regulations, Regulation 6 amends the 1989 regulations to include a reporting obligation for the Secretary of State and Welsh Ministers on the implementation of the regulations every three years.

Regulation 7 amends the urban waste water treatment regulations, which apply to England and Wales only. As well as changing references to “EU law”, so that they now refer to “retained EU law”, a requirement is included that relevant environmental reports are to be published by the Secretary of State and Welsh Ministers.

Regulation 8 deals with water fittings regulations, which extend and apply to England and Wales only.

The amendment in Regulation 9 to the drinking water undertakings regulations, which again extend to England and Wales, changes the word “implements” to “implemented”, to reflect that there will be no future requirements to transpose EU directives after exit day.

The Water Industry (Special Administration) Rules are amended by Regulation 12. The special administration regime is an insolvency regime specifically created for water and sewerage companies. It is a reserved matter, but the regime only applies to England and Wales, as Scotland and Northern Ireland have different water industry structures.

The silage, slurry and agricultural fuel oil regulations apply to England only. They are amended by Regulation 13 to allow products such as silos and slurry tanks that are of equivalent standards to the British standards to be installed, wherever they are manufactured.

On the question of the Incidental Flooding and Coastal Erosion (England) Order 2011, Regulation 14 amends the order, which applies to England only. As with the Water Act 1989, it changes the definition of “environmental objectives” so that it relates to our domestic legislation which implements the water framework directive rather than to the directive itself, which will not be part of our law.

Regulation 15 amends the Bathing Water Regulations, which extend to England and Wales. The amendments correct cross-references to the bathing water directive which would be deficient on exit. A requirement is also included for the Secretary of State and the Welsh Ministers to publish a report each year containing monitoring results and other information about bathing water season.

Similar amendments to deal with cross-references to EU legislation are made to the Nitrate Pollution Prevention Regulations by Regulation 16. These apply to England only. An obligation is also placed on the Secretary of State to publish reports on the implementation of these regulations.

Regarding the flood reinsurance regulations, which are dealt with in Regulation 17, this is a reserved policy area and this amendment covers all of the UK. A minor technical amendment is made to the reference on obligations on the scheme administrator arising from “directly applicable” EU legislation. This will instead read as the obligations arising from “retained direct” EU legislation.

The water supply and private water supplies regulations apply to England only. The amendments in Regulations 18 and 19 fix cross-references which are deficient. Provision is also included so that the Secretary of State has an obligation to produce and publish reports on drinking water quality.

Regulation 20 amends the England and Wales regulations which implement the EU water framework directive. Many of the corrections replace the term “EU instrument” with “retained EU law”. These amendments cover England and Wales, reflecting the fact that the two countries share a single set of regulations implementing the directive. The Welsh Government agree to this approach. This policy area is fully devolved for Northern Ireland and Scotland, but we have made very similar operability corrections to the separate regulations governing the cross-border river basin districts of Northumbria and Solway Tweed, which are shared between England and Scotland. This approach was agreed by the Scottish Government.

The inserted Schedule 5 makes a series of modifications to the water framework directive and two other connected directives so that references to those directives continue to work properly after EU exit. These include modifying references to “member States” and to EU legislation. There are also some necessary omissions such as articles about reporting to the Commission and to the Commission resolving issues between member states.

The two sets of water abstraction regulations referred to in Regulations 21 and 22 extend and apply to England and Wales. Regulation 22 fixes cross-references to terminology used in the water framework directive to make it operable.

The regulations amending and revoking EU decisions extend and apply to all the UK and have been drafted in liaison with the devolved Administrations and with their consent.

Having taken your Lordships through each element of the regulations, I hope that you will understand why I want to emphasise that they are about fixing technical deficiencies in the floods and water legislation to ensure that it continues to operate effectively. I emphasise again that this instrument does not introduce new policy and preserves the current regime for protecting and improving the water environment. I beg to move.

Photo of Baroness McIntosh of Pickering Baroness McIntosh of Pickering Conservative 6:30 pm, 22nd January 2019

My Lords, I thank my noble friend for introducing so eloquently and thoroughly the statutory instrument before us. Probably the most relevant of my interests is that I work with the Water Industry Commission for Scotland, which is the Scottish water regulator. I have a number of questions that I would be grateful if my noble friend could address in summing up.

Article 20 of the water framework directive says that any change to standards, values, substantive lists and best environment practice should be made only in light of technical and scientific progress. While we have been members of the European Union, we have benefited from scientific and technical expertise being subject to control and review to make sure that we comply with the water framework directive, which was the mother of all directives, with daughter directives under it—I should declare an interest also in that I was an MEP when the nitrates directive was passed, and I do not think that anyone imagined that setting the level of nitrates in water in the way that we did would be quite so prohibitive in areas such as East Anglia, where nitrates already exist in high levels. What will be the procedure if such changes are made, and how will they be tested against the best scientific and technical advice? I share the concern expressed in our debate on the previous statutory instrument that we have not had the environment Bill setting up the office for environmental protection. There is further concern that it will not come into effect until 2020.

I therefore have two concerns. First, what scientific and technical expertise will be in place to make sure that any changes are monitored against the best possible scientific advice? I refer back to the terrible reputation we had in the 1980s as the sick man or dirty man of Europe. We all have to accept that not just water companies but all of us, as water customers, have paid huge amounts to actually have some of the cleanest rivers and bathing waters in Europe. Obviously, we do not want to jeopardise that.

My noble friend may have addressed my second concern, which relates to Regulation 14, which he said has had cross-border agreement—certainly, the provision relating to the Northumbria river basin has been agreed by the Scottish Government. But it has been put to me that, by doing what the statutory instrument seeks to do, it is reducing the level of compliance with the water framework directive, and I would like to be satisfied that that is not the case. I want to make sure that we are not reducing the level of compliance in relation to the Solway Tweed river basin and the Northumbria river basin. I should declare another interest in that I think I might be a customer of Northumbrian Water during my holidays. Obviously, we want to get that right.

I welcome the specific reporting requirements, which the Minister set out, in relation to the results and grading of assessments and description of measures taken or proposed to be taken. These relate to Regulation 7(3), which amends the urban waste water treatment regulations 1994, Regulation 15, which amends the Bathing Water Regulations in respect of annual reports, and Regulation 16, which amends the Nitrate Pollution Prevention Regulations 2015. So some very good reporting systems are being made public. However, although these reports are being made public, the draft statutory instrument makes no provision for these reports to be reviewed if any failures emerge from them. Such failures would currently be addressed by the European Commission. My question is: what body will deal with any future potential failures? If the reports are made public, would it be a scrutiny committee such as that chaired by the noble Lord, Lord Teverson? What mechanism will there be to make sure that these are reviewed?

An example that might be helpful to the House and to the Minister is that, if the UK can grant derogations under the directives, as we can, the statutory instrument provides that these can be decided and granted by the Secretary of State. Currently, these decisions are also reviewed by the Commission to determine whether they are valid derogations and meet the requirements of derogations. The statutory instrument is silent as to what the review of derogations will be in future. I would like to have the satisfaction of knowing that there is going to be a review in place and what that review will be.

My final concern relates to a comment that the Minister made. He will be aware of my concern, because I have raised it before, that there is no requirement on the Government to transpose future European directives after exit day. We understood—I think it was when the European Union (Withdrawal) Act was going through its scrutiny before it was enacted—that it is open to the Government to apply, for example, any future modifications or revisions to the water framework directive, the urban waste water directive, the nitrates directive or any of the daughter directives of the water framework directive. I would like confirmation that the Government remain open to that, and that we would wish to meet the highest possible standards—provided that the cost is not prohibitive obviously, because we are all water customers as well. If that is the case, what mechanism will the Government seek to use to implement future revisions of the directives which are the subject of the statutory instrument before us today? What would that instrument be?

Photo of Baroness Parminter Baroness Parminter Liberal Democrat

My Lords, it is a great pleasure to follow the noble Baroness, Lady McIntosh of Pickering; I echo, but shall not repeat, all her comments. I have two further supplementary questions that I hope the Minister might address in his summing up.

First, in the previous statutory instrument the Minister was able to outline to the House an indication of some of the bodies which will be replicating some of the scientific expertise and processes which are at present undertaken by the European Union. That was extremely helpful, and I hope that he might be able to do that for this incredibly important SI as well, given the implications not just for environmental protection but for human health.

My second point follows on from the comments about who will monitor the delivery of the regulations. There is a change from the original EU regulation. In the original, the EU stipulates the format in which people have to report to the Commission, whereas in the regulation that has just been transposed into domestic regulation for us to approve, it is only up to the Secretary of State to indicate what he or she deems appropriate forms of reporting. This arguably leads to the charge that, by not stipulating the format for reporting, it could lead to a less effective means of monitoring the regulations, which I am sure none of us wants. I hope the Minister responds to that point.

Photo of Baroness Young of Old Scone Baroness Young of Old Scone Labour

My Lords, I too commend the noble Baroness, Lady McIntosh, for her points; I support all of them. I will briefly touch on the point made by the noble Baroness, Lady Parminter, about the format of reports. It seems to me that the format being decided not by a collaborative process across Europe but by the Secretary of State is a double whammy. The Government are not just filling in their own report card—they are designing their own report card, which they will then go on to fill in. I hope we can press the Minister on getting assurances that we will as far as possible shadow the extent and rigour of European formats for these reports in the future.

Photo of Lord Deben Lord Deben Conservative

As the responsible Minister during much of the period in which these European Union regulations were being put into operation, I would not like to let this occasion pass without pointing out a slight amusement of mine. This transposition from EU law into British law seems to be a perfectly happy and reasonable thing—and we have not heard shrieks from the anti-Europeans on the subject—but at the time of the original regulations Britain had the dirtiest reputation in Europe. We had filthy bathing waters; our drinking water was below the standard of most countries certainly in northern Europe and probably the whole of the then European Union. We were forced, because we had to sign up to this, to improve the conditions of water in this country—I say this as someone who was for some time the chairman of a water company, seeing it from that side of the fence as well as the government side. This House ought to remember that it must keep the Government’s feet to the fire, because, before we were a member of the European Union, we would not have done any of these things. I suspect that today, had we not been a member of it, we would have been considerably backward now.

There is a real issue about this too, because we also have to remember that no man is an island—this island cannot do things without affecting other people. We will have to think, were we to leave the European Union, of the points that the noble Baroness, Lady McIntosh, has referred to—that, if we wish to, we will be able to take laws which have been passed in the rest of Europe into our own hands. Of course, it will take much more statutory time to do so; it will not be as easy as it has been up to now. But we have to realise that what we put into the channel from our side will affect people on the other side of the channel, just as what we do in the United Kingdom from the north of Ireland directly affects people in Ireland.

I remind the Government that, in this reasonable and sensible way of passing what we have on to the future were we to leave the European Union, we are only where we are because of the European Union. Those of us who had to fight that through the other House will recognise just how much we owe to our membership, just how much danger we are in by leaving, just how little the Government have already promised us, just how little there appears to be in the environment Bill, as far as we know, and just how much we will have to fight to maintain the standards in Britain if we are to leave the European Union—which is why it is barmy to do so.

Photo of Lord Berkeley of Knighton Lord Berkeley of Knighton Crossbench 6:45 pm, 22nd January 2019

My Lords, I will introduce the words “climate change” at this point, simply because it seems, to follow on slightly from the noble Lord, Lord Deben, that constancy and vigilance will be particularly important. If one thinks of the extremes of climate change that we are already experiencing—and there is every indication that it will get much worse—the constancy that the Minister is speaking about becomes extremely important. At times of drought and of far too much rain, many things start to go wrong. Drought is the obvious one, as you do not have enough water, but when there is too much rain—I speak as somebody who lives on a farm—you start getting an enormous amount of run-off of chemicals into the rivers, and things like that. Therefore, this constancy towards regulation, wariness for the future and extreme vigilance are incredibly important in this area.

Photo of Baroness Byford Baroness Byford Conservative

My Lords, I will add just a couple of things. I thank my noble friend the Minister for so clearly setting out the objectives of these transfer regulations, because that is what we are discussing, while looking to the reports in the future. Like other noble Lords, I look forward to the setting up of the environmental body, because it is key to future regulation and checks and balances on what happens. Clearly, it is not good just to have reports; actions need to follow on from them. That has not quite been touched on today.

I will follow the noble Lord who spoke just now of droughts and the rain position. The Minister will know, because I raised it with him quietly earlier, the difficulty that some farmers are having in drought areas. I refer in particular to the position of Norfolk, which was referred to earlier, and the difficulty that farmers there are having because the Environment Agency is dragging its feet and not getting on with the business of giving answers to questions that are raised. Although it is not clear, because it does not quite fall within the remit of these regulations, it raises another issue altogether. We want to make sure that the various organisations that exist now and which are responsible for making things happen are doing the job that they should be doing. If they are not, who then holds them to account? I think it would be the new environment body, but I worry that if we are not careful, we will have so many different bodies, and at the end of the day, who will be in control of saying yes or no? It should be the Government of the day, but the Government of the day have passed some of these responsibilities on to well-established bodies. Clearly, however, in this case the job is not being done, which is causing immense angst for those who are in business there. Without having those sorts of issues settled on what they can and cannot abstract, in future their businesses will be very much in jeopardy.

Photo of Lord Teverson Lord Teverson Chair, EU Energy and Environment Sub-Committee

My Lords, I strongly endorse the comments of the noble Lord, Lord Deben. We had real issues about water quality in the south-west, where I live, before we had the various framework directives, particularly the bathing water directive. Through the action of the European Union and a pressure group called Surfers Against Sewage, we now have fantastic beaches in the south-west.

I intervene because I want to personally thank the noble Lord, Lord Deben. Privatisation of the water industry meant that those improvements could be afforded, which meant that water bills in the south-west, and Cornwall in particular, went up by a huge amount. As a result, I was elected as an MEP for Cornwall, Scilly and Plymouth in 1994. I was one of the first two Liberal Democrats ever to be elected to the European Parliament, so I again thank the noble Lord. Perhaps that was not meant to be the result of that policy decision, but we still have excellent beaches in the south-west, and I encourage everyone to visit them, enjoy them and celebrate the European directive that meant that we could enjoy bathing in the clean waters of the Atlantic in the south-west.

Photo of Lord Judd Lord Judd Labour

I too put on record my congratulations to the noble, Lord Deben, not for the first time, for his forthright and important intervention. It is not very many years since I remember a glorious summer’s day bathing off Bournemouth and finding myself swimming next to a gigantic turd. I thought that this was too much, and I wrote to the clerk of the council in Bournemouth to register my protest. I could hardly believe it when I received in reply a letter from the clerk saying, “You must understand that this sewage must have come from Poole; it does not come from Bournemouth”. How we have progressed is extraordinary. It would be very unfortunate if we did not place on record our appreciation for all those in the European Union who have worked so hard to produce the legislation and rules which have enabled us to enjoy some of the best beaches in the world.

That did not happen by accident but by a great deal of co-operation and commitment within the European Union. As in other spheres, such as security and so many others, that is crucial to recognise. It is not to overuse the word to say that it is tragic that so few people recognise that in so much of this work, British officials and expertise have played such an important part in developing the policies. We have to reflect on why people with real commitment, insight and expertise found it possible to get us to the state we are in only in the context of Europe. We will, as the noble Lord, Lord Deben, said, have to work very hard not just to sustain what we have inherited but to maintain the dynamism and imagination which have come from Europe.

Photo of Baroness Jones of Whitchurch Baroness Jones of Whitchurch Shadow Spokesperson (Environment, Food and Rural Affairs)

My Lords, I refer to my interests as set out in the register and thank the Minister for his explanation and all noble Lords who have spoken this afternoon.

On water regulation in particular, as we have all heard, we have benefited over the years from robust EU regulation which has helped to drive up the quality of our drinking water, our bathing water and groundwater. It is vital that we hold on to those benefits for the future and do not allow standards to fall back through a lack of robust regulation and oversight. It is clear that a number of the themes raised in the previous debate, such as reporting and accountability, are also relevant to this SI.

At a basic level, the draft SI introduces reporting requirements on a par with those currently set out in the EU time cycle. However, as noble Lords have said, accountability ends once those reports are published and made publicly available; there is no mechanism for the requirements to be scrutinised and their failures addressed. The reports include ones on urban wastewater treatment, bathing water and nitrate pollution prevention. In these cases, it seems that Ministers become judge and jury, publishing reports and checking their compliance with the law.

In addition, in the past, derogations would be requested by the Secretary of State and approved by the EU Commission, but now, the Secretary of State seems to have the powers to request and approve them. Why does this SI not include a requirement for reports and derogations to be reviewed and assessed by one of the existing UK environmental bodies on an interim basis until the office for environmental protection is established? Indeed, as the Minister explained in the debate on the previous SI, why can a separate body not be established on an interim basis and why can that not be set out in the SI?

A number of noble Lords talked about moving away from EU standards. It appears that the future application of the regulations will allow the UK to move away from parity with EU standards; I agree with the noble Baroness, Lady McIntosh, the noble Lord, Lord Deben, and others on that point. What thought has been given to the implications of this divergence? Surely we do not have to separate in every respect from what is good in the EU. Surely on a subject such as this, there is a case for retaining those standards post Brexit. What is there to prevent us doing so, given that—as the noble Lord, Lord Deben, reminded us—we owe so much to those directives, which have provided us with improvement, quality and reassurance?

Why must we leave? Why must we go through every SI, deleting “Europe” and inserting “the UK”, when it is in our interests to maintain EU standards? For example, if we do not apply the same vigour in maintaining standards of water quality, is there a danger of our exports of foodstuffs or crops to the EU being jeopardised because we could not provide the same proof of water purity, as happens elsewhere in the EU? Similarly, if we do not comply with the same authorisation for bathing water, and therefore do not utilise the EU blue flag scheme that everyone recognises, is there not a danger of us reverting to our reputation as the “dirty man of Europe”, with consequences for our tourism trade from EU visitors and for our UK bathers? Is there not a case for ongoing parity with EU rules and standards? Should we not be negotiating continued access to EU-approved mechanisms as a matter of urgency? They have stood us in good stead.

I could make a similar point about plumbing fittings. The Explanatory Memorandum makes it clear that we should no longer give “preferential treatment” to plumbing systems carrying the EU standard and that, in future, goods with British Standard fittings can be installed. What is the benefit of us having a different standard on plumbing fittings? Surely if we operate one system and the EU expects imports of plumbing equipment with the EU standard, that could jeopardise our exports. I cannot see what we will gain from that. It is one of the many ridiculous outcomes of our leaving the EU. Does it not make sense to be EU-compliant with the broadest possible bulk of our goods and services when we are not losing out in any other way? How does this SI ensure that we make the minimum necessary adjustments to our regulations while seeking ongoing parity with the EU as far as possible? I hope that the Minister can address that point.

I now turn to the loss of scientific expertise, which was raised in our previous debate and is equally concerning here. The water framework directive, for example, specifically requires that any changes to its standards should be made only in the light of the best technical and scientific expert advice. At the moment we have access to Europe-wide research and analysis to shape our decisions on such things, but in future that will not necessarily be available to us. While I do not doubt the expertise within our own scientific community, there are issues about the considerable extra workload, in terms of depth and quantity, that we will be placing on our own scientific advisers. So what steps are being taken to ensure that the scientific advice will be of the same technical and authoritative standard? Should this SI not spell out how the advisers will be selected and approved, to ensure that that is the case?

Finally, the Minister may have seen the specific technical concerns about the wording raised by Greener UK. This is something I raised in the earlier debate. On this SI, it has raised concerns that the compliance rules have been removed inconsistently. For example, measures required under the Water Environment (Water Framework Directive) (England and Wales) Regulations 2017 will no longer be in compliance with Article 10 of the water framework directive. This covers issues such as the implementation of emission controls, emission limits and best environmental practices. At the same time, other specific references to directives, such as integrated pollution prevention, urban wastewater treatment and protection against water pollution caused by nitrates from agriculture runoff, have all been removed without explanation. Are the arrangements for consulting NGOs in advance of the publication of these SIs still in place? This process was meant to avoid those inconsistencies and omissions creeping in. Does the Minister feel that those pre-scrutiny arrangements are working well? If so, how come these concerns are still being raised at this point? Is there a process whereby at this late stage these omissions can be corrected? I hope the Minister is able to address these issues and I look forward to his response.

Photo of Lord Gardiner of Kimble Lord Gardiner of Kimble The Parliamentary Under-Secretary of State for Environment, Food and Rural Affairs 7:00 pm, 22nd January 2019

My Lords, I thank all noble Lords for their contributions, which have shown that we take these matters extremely seriously.

My noble friend Lady McIntosh and the noble Baroness, Lady Jones of Whitchurch, raised reporting and governance requirements. My noble friend Lord Deben spoke of the role of Parliament and Select Committees in holding the Executive to account. I cannot for one minute believe that that will change, particularly if my noble friend is rightly in his place—and indeed all noble Lords, because clearly we all want to get this right. Our legislative framework already includes provisions for regulators to enforce our existing environmental regulations, and there is our system of judicial review. We will retain our rigorous parliamentary scrutiny and strong domestic legal framework for environmental protection, but we want to go further. I say that particularly to the noble Baroness, Lady Jones.

Photo of Lord Davies of Stamford Lord Davies of Stamford Labour

I thank the Minister for giving way. Does he not accept that one very important thing we shall lose if we leave the European Union in two months’ time is the Francovich principle, under which individuals or groups of people can sue the Government or other state authorities for not observing the law on these matters? It is due to Francovich that on a number of occasions we won considerable improvements to our water quality and the cleanliness of our beaches. That constraint on government, that discipline, will disappear completely if we leave the European Union.

Photo of Lord Gardiner of Kimble Lord Gardiner of Kimble The Parliamentary Under-Secretary of State for Environment, Food and Rural Affairs

Had the noble Lord known what was coming in my remarks, he might have been furnished with the response. As I mentioned in the previous debate, establishing the office for environmental protection will ensure that this and every other future Government benefit from the expertise vested in a consistent, long-term, independent environmental body. We currently propose that the new body should have three main functions: to provide independent scrutiny and advice; to respond to complaints about the Government’s delivery of environmental law; and to enforce the Government’s delivery of environmental law, where necessary.

The office for environmental protection will report annually on progress in delivering, for instance, the 25-year environment plan. This is similar to the current reports of the European Environment Agency on member state progress. The OEP will be independent and set its own priorities, so it is not for government to direct its priorities. We would expect, however, that the OEP would choose to scrutinise such reports. As I mentioned before, we will put in place a holding arrangement during the interim period between 30 March 2019 and the launch of the OEP, if no withdrawal agreement is finalised. This will provide a mechanism for the OEP to receive a report of any perceived or—

Photo of Lord Davies of Stamford Lord Davies of Stamford Labour

I am sorry to interrupt the noble Lord again, but I am afraid that he may have missed the point. I am sure he knows an awful lot about this subject, so he must know about the Francovich principle. Some 17 successful cases have been brought against the British Government or authorities, and several hundred in the Union as a whole, since the European Court decided on the Francovich judgment. That is a discipline quite different from having regulators. Of course we must continue to have regulators, and the noble Lord has suggested that the Government will now set up another regulator. Regulators are fine, but far more effective as a discipline is the Francovich principle, under which the Government or any other state organisation can be sued in court. They are therefore not only exposed in the courtroom but can be made to pay damages and, no doubt, considerable legal fees. That discipline exists now but will not exist, because the Government specifically have no intention of continuing with it after we leave the European Union—if we do.

I have raised this matter before and I want, if possible, to persuade the Government to continue this valuable principle in our national life, given that it has been an important part of our membership of the European Union. So far, I have got nowhere at all, but I beg the noble Lord to focus his reply on Francovich and not give me instead interesting but irrelevant things, like a new regulator.

Photo of Lord Gardiner of Kimble Lord Gardiner of Kimble The Parliamentary Under-Secretary of State for Environment, Food and Rural Affairs

I will continue to talk about the regulator, but I will say that I know from my experience of the judicial reviews of ClientEarth, of which a number of your Lordships are well aware, that it is clearly a route by which these matters have been dealt with.

As I was about to say, the holding arrangement shows the Government’s bona fides, and we will provide that mechanism for the OEP to receive a report of any perceived or claimed breaches of environmental law made during any interim period.

Photo of Baroness Young of Old Scone Baroness Young of Old Scone Labour

I was intrigued by the noble Lord’s statement that the OEP would enforce regulation and compliance if the Government were not complying. Can he give us further details on the enforcement mechanism? The big worry is that we will have a regulator without the ability to enforce government compliance with environmental standards.

Photo of Lord Gardiner of Kimble Lord Gardiner of Kimble The Parliamentary Under-Secretary of State for Environment, Food and Rural Affairs

I admire the noble Baroness’s inquiring mind. Clearly, that will be relevant to the environment Bill in the next Session, and to many of the deliberations in the other place and here. We are embarking on a very important move and I invite your Lordships to be fully engaged. We want to get it right for the long term.

On EU standards, I absolutely get the point expressed —and with passion—by the noble Lords, Lord Judd and Lord Teverson, and my noble friend Lord Deben. But it may be that a future Government of this country want to go further than the EU. We should be less pessimistic about our future in this country, whatever we think about arrangements. There may be intricacies of our national life that mean we want to go further than the EU standards of the time. I get the point, however, and of course we want to safeguard and improve the record that has been achieved. For example, there are some very good statistics on how bathing waters have improved. I particularly admire what Surfers Against Sewage has done—it has been tremendous in raising the public profile of this issue—and I also appreciate what many other organisations have done, in a European context and in the UK. However, the withdrawal Act ensures that existing standards transposed into domestic law will be retained. We want to maintain these high regulatory environmental standards and, as I said, improve on them wherever possible.

On the question of water supply fittings—

Photo of Lord Deben Lord Deben Conservative

Of course my noble friend is saying exactly what he and I would want. But I remind him that when we were not in the European Union—and if we had not been in the European Union—he and I would have been on the same side, pushing Governments to raise their standards and they would not have raised them. Therefore, we can only go on the past. We are where we are because we were in the European Union. We can have hopes for the future if we leave the European Union but, frankly, I doubt them. We have always been much less good at these things when we were not in the European Union because the Treasury always had a jolly good reason to stop good people like him and me fighting for what we believed in.

Photo of Lord Judd Lord Judd Labour

My Lords, the Minister made great play of the fact that we could perhaps want to go further than the European Union, but there was never any objection to us having higher standards than required in the European Union—never. That is a misconception and it is quite wrong to suggest that.

Photo of Lord Gardiner of Kimble Lord Gardiner of Kimble The Parliamentary Under-Secretary of State for Environment, Food and Rural Affairs

My Lords, I think that in the mood of the times on the environment and all that we have seen, whether in reference to climate change or the use of plastics, this country and the world are moving into a different phase of thinking about things that we did wrong before. Whatever happens, we in this country, with the expertise that we have, should be championing all these things. I do not think, for instance, on scientific expertise that I can do anything other than say that we have some of the world leaders in this matter. Clearly, the UK Technical Advisory Group will continue to liaise with agencies and Governments across the UK, with our European friends and with our global counterparts, precisely because, as has been said, so many of these things have a knock-on influence.

On the issue of the water supply fittings referred to by the noble Baroness, my understanding is that the amendment is to ensure that the UK will not be in breach of WTO rules. Our current legislation makes it clear that UK standards still need to be met when installing water fittings in agricultural storage products, and I stress that products from the EEA and any other country can still be used and installed if they meet the current high UK standards. That is the background.

I will look at the issue of technical omissions because I respect—as I respect all the comments that have been made—what the noble Baroness said about those. The technical omission of certain articles, including Article 10 of the water framework directive, does not impact on the functioning of the water and floods policy regime. Article 10 repeats existing obligations that are already transposed into our domestic law. We are already under- taking these obligations and will continue to undertake them as set out in our domestic law. However, I will pick up the point that the noble Baroness made.

My noble friend Lady McIntosh of Pickering asked about the procedure to change Article 20. Article 20 of the water framework directive is about the technical adoption of the directive. We will continue to co-operate effectively with our European and global counterparts to exchange the latest scientific information. We will of course also liaise with the devolved Administrations through the current UK Technical Advisory Group. She asked about cross-border issues. The Environment Agency and the Scottish Environment Protection Agency collaborate on the cross-border river basin districts in setting standards and developing river basin management plans for Solway Tweed and Northumbria. The SI amendments are operability matters. They will certainly not lead to a lowering of standards. That is not the purpose. In fact, there are no policy changes and we wish to retain our standards, if not improve them.

I think I alluded to future EU directives. This instrument is about preserving and protecting the existing regime, and it will be for the Government and Parliament to consider improvements consistent with our overall approach on the environment set out in the 25-year environment plan. This is again a matter about which we should be positive.

On the technical question of the adoption of Article 20 of the directive, the technical aspects of the directive require updates by the EU Commission. These will be transferred to the Secretary of State in a separate SI. The updates will continue to be for scientific and technical progress, and this will be preserved in the SI.

On the consultation, obviously it is important that we consulted more than 25 external environmental stakeholders. There was an event on 27 September to explain the approach to the drafting and the continuity of existing policy. Stakeholders were invited to view the instrument prior to it being laid. The RSPB and the NFU exercised that opportunity and no concerns were raised by anybody about the instrument because it is about operability and is a technical matter.

I will look at Hansard to see whether there are any outstanding matters. This is an operability matter.

Photo of Baroness Young of Old Scone Baroness Young of Old Scone Labour 7:15 pm, 22nd January 2019

Perhaps I might press the Minister on the consultation arrangements. This is a point I have made previously, and I wish I had pushed it harder. We appreciate that various environmental NGOs and others were given sight of the instrument before it was laid because that gave an opportunity to get expert input into it. I wonder whether there is an opportunity to bring parliamentarians into that process in future SIs because the risk is that an SI is laid and we have no opportunity to amend it in any significant way because of the process. It might be helpful if parliamentarians who are interested in the technicalities of these SIs could see them before they are laid so that they could also have an influence on them at a time when it is possible to make changes.

Photo of Lord Gardiner of Kimble Lord Gardiner of Kimble The Parliamentary Under-Secretary of State for Environment, Food and Rural Affairs

I have a feeling that that may be above my pay grade, but it is certainly an interesting and legitimate point. In all these areas, obviously we want to bring forward statutory instruments and legislation that command the support of Parliament. Parliamentary scrutiny—certainly the scrutiny that your Lordships present—is challenging and keeps a Minister on their toes and the Government’s feet to the fire. On this technical matter, I—

Photo of The Archbishop of York The Archbishop of York Bishop

The Minister has been very clear about the benefits of regulation, particularly for the environment, which, as he said, were brought about through sheer hard work, campaigning and persuading other people. Nevertheless, does he agree that EU regulations have grown into a jungle that has become very difficult to penetrate?

Photo of Lord Gardiner of Kimble Lord Gardiner of Kimble The Parliamentary Under-Secretary of State for Environment, Food and Rural Affairs

When I read the first draft of the Explanatory Memorandum, my thoughts were that lawmaking can be extremely complicated and that the drafting sometimes takes further reading. The clear message on what we want to do through this SI and the earlier instrument is that we want to safeguard this country’s environmental standards. That simple concept sometimes involves fairly intricate matters, so I say to the most reverend Primate that I like and appreciate simplicity, but there are moments when we need to make sure that the law is produced in an intelligible and understandable form.

Photo of Lord Deben Lord Deben Conservative

Before my noble friend sits down—

Photo of Lord Deben Lord Deben Conservative

No. I was hoping to say something before my noble friend sat down.

Photo of Lord Gardiner of Kimble Lord Gardiner of Kimble The Parliamentary Under-Secretary of State for Environment, Food and Rural Affairs

I have not sat down but I think that we are starting to elongate this matter and I ought to conclude.

Motion agreed.

House adjourned at 7.20 pm.