Environment Bill: Legislative Consent Motion

Executive Committee Business – in the Northern Ireland Assembly at 6:30 pm on 30th June 2020.

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Photo of Roy Beggs Roy Beggs UUP 6:30 pm, 30th June 2020

The next item of business is a legislative consent motion (LCM) for the Environment Bill.

Photo of Edwin Poots Edwin Poots DUP

I beg to move

That this Assembly endorses the principle of the extension to Northern Ireland of the provisions of the Environment Bill, as introduced on 30 January 2020, dealing with: environmental governance Northern Ireland in clauses 45 and 46 and schedules 2 and 3; waste and resource efficiency in clauses 47-53, 56, 58, 62, 64 and 68 and schedules 4-9; water quality in clauses 81 and 83; and amendment of REACH legislation in clause 125 and schedule 19.

Photo of Roy Beggs Roy Beggs UUP

The Business Committee has agreed that there will be no time limit for the debate. I invite the Minister to open the debate on the motion.

Photo of Edwin Poots Edwin Poots DUP

Thank you, Mr Deputy Speaker. I am grateful for the opportunity to bring the legislative consent motion forward and to speak about an issue that affects us all. The Environment Bill is a UK Government Bill, containing a range of clauses; some of which apply UK-wide, some only to England and some to Northern Ireland and other devolved jurisdictions. A number of matters that are covered by the Bill are reserved and, as such, do not require the consent of the Assembly for the UK Government to legislate at Westminster. Transfrontier shipment of waste is an example. However, the environment in general is a devolved matter and, hence, most of the clauses in the Bill that apply to Northern Ireland require the Assembly's consent. At this point, I record my appreciation for the work that has been carried out by the Committee for Agriculture, Environment and Rural Affairs in completing its report under difficult circumstances for the benefit of the Assembly.

The original intention of the Bill was to address the environmental governance gaps that will be created at the end of the EU withdrawal transition period, in particular the absence of the environment oversight role that is currently undertaken by the European Commission and the environmental principles that are embedded in the EU treaties. The UK Government published a draft Bill in December 2018 that addressed those specific points and gave a statutory footing for their 25-year plan for the environment. Subsequent iterations of the Bill included a range of other environmental matters, some of which are driven by EU withdrawal, while others seek to maintain existing UK-wide systems. A Bill has been drafted so as not to constrain the ability of the Assembly to scrutinise the Bill. This is a key point, but with one exception. The provisions that deal with the devolved matters in Northern Ireland can be implemented only after being debated and approved in the Chamber. That one exception, a power to amend specific chemicals legislation, had to be made for technical reasons and would still require the approval of DAERA before it could be implemented here.

It is my general view that, where possible, devolved matters should be legislated for by the Assembly. However, in this case, there simply is not time to deliver fully considered Northern Ireland legislation before the end of the transition period. Failure to take this opportunity to keep open the options presented by this UK Bill would be detrimental to environmental governance and safeguards in Northern Ireland. To be clear, this does not constrain the Assembly from enacting additional or alternative Northern Ireland legislation relating to any of the devolved matters in the Bill in future.

There are 17 clauses and nine associated schedules for which legislative consent is sought. These cover a range of environmental matters, including improving the natural environment, environmental oversight, waste, resource efficiency, water and chemicals. I will start with the relevant provisions in Part 2 of the Bill, which relate to environmental governance. Clause 45 gives effect to schedule 2, which is split into two Parts. Part 1 provides for the arrangements for the development and management of environmental improvement plans. Part 2 outlines the means by which the environmental principles currently enshrined in the treaty on the functioning of the EU can be incorporated into Northern Ireland law and, subsequently, policy-making.

More specifically, Part 1 provides for, first, the preparation, review, revision and renewal of environmental improvement plans and, secondly, the collection of data to assist with monitoring progress on environmental and improvement plans. This allows plans to improve the natural environment to be placed on a statutory footing. Part 2 allows for the preparation and publication of a statement on the interpretation and application of relevant environmental principles to which Northern Ireland Departments and UK Government Ministers must have regard when making policy in respect of Northern Ireland. This would allow us to address the gaps in arrangements relating to environmental principles as a result of departure from the EU.

Clause 46 concerns the office for environmental protection (OEP) and gives effect to schedule 3, which would allow this body to exercise its functions in Northern Ireland. Its broad role would be to replace the environmental oversight function of the European Commission, holding public bodies to account for any failure to comply with environmental law. The provisions of schedule 3 would give the OEP operating in Northern Ireland broadly similar powers to the OEP operating in England. These powers would allow the OEP to monitor the implementation of environmental law and progress in improving the natural environment in accordance with any environmental improvement plans agreed by the Executive; provide Northern Ireland Departments with advice — for example, on any proposed changes to environmental law; and investigate any failures by public authorities in Northern Ireland to comply with environmental law, taking appropriate enforcement action when necessary. This would allow us to address an obvious environmental governance gap as a result of departure from the EU.

At this point, it is appropriate to advise Members that it is my understanding that the UK Government intend to table a small number of amendments to the provisions relating to the OEP when the Westminster Committee Stage resumes. I have not yet had the opportunity to consider the proposals fully and, obviously, it would not be appropriate for me to announce UK Government policy, but I can say that these amendments are intended to clarify the OEP's role. I will consider whether similar amendments would also be desirable for Northern Ireland and will advise Executive colleagues and the AERA Committee as appropriate. Should any amendments to Northern Ireland provisions proposed during the Bill's passage through Parliament fall outside the scope of this motion, a further legislative consent motion would, of course, be tabled in accordance with the requirements of the relevant Standing Orders.

Part 3 contains provisions on waste and resource efficiency. Clause 47 gives effect to schedule 4, which deals with producer responsibility, obliging business that place certain specified products or materials on the market to take greater responsibility for those products or materials once they have become waste. The Environment Bill provides the means by which the UK-wide producer responsibility schemes can be replaced and updated and new obligations placed on producers in relation to reuse, redistribution, recycling and recovery of products. For Northern Ireland, schedule 4 confers on DAERA powers to make new regulations under which producer responsibility obligations can be imposed on specified persons and in relation to specified products and materials. It also provides for enforcement of these regulations.

Clause 47 also repeals the producer responsibility obligations, which are no longer required alongside the provisions of schedule 4. Those provisions will allow me, as Minister, to keep producer responsibility schemes operable, and/or reformed or to introduce schemes alongside the rest of the UK.

Clause 28 gives effect to schedule 5, which also deals with producer responsibility, conferring powers on DAERA to make Northern Ireland regulations that may require those involved in the manufacture, processing, distribution or supply of products or materials to pay for or contribute to the cost of disposing of those items when they become waste. It also provides for the enforcement of those regulations. The provision is designed to incentivise producers to design products with sustainability in mind with the aim of reducing the consumption of raw materials.

Clause 49 gives effect to schedule 6 and is concerned with resource efficiency information, allowing DAERA to make product-specific regulations, setting requirements to provide information about a product's resource efficiency. It also provides for enforcement arrangements. The provision is designed to require clear labelling on products to enable consumers to identify those that are more durable, repairable and recyclable.

Clause 50 gives effect to schedule 7, and also relates to resource efficiency. Under the provision, DAERA can make regulations setting requirements for specific products' resource efficiency. Enforcement arrangements are also provided for. Alongside schedule 6, these provisions are intended to encourage more sustainable and efficient use of materials.

Clause 51 schedule 8 brings into effect and deals with deposit-and-return schemes. The provision allows DAERA to make regulations to establish and enforce deposit schemes. Under the schemes, consumers can pay a deposit when they buy an item — for example, a drink in a bottle or can — which is redeemed when the used item is returned. Such schemes can reduce littering and increase recycling and reuse.

Under clauses 47 to 51, regulations from Northern Ireland may be made by the Secretary of State for Environment, Food and Rural Affairs, but only with DAERA's consent. An example of where that might be granted is where there is agreement on the benefit of taking a UK-wide approach to a scheme.

Clause 52 and its associated schedule 9 allow DAERA to make regulations for Northern Ireland relating to charging for a range of single-use plastic items by sellers of goods and services. It also provides for the enforcement of those regulations, including the imposition of civil sanctions. It is intended to build on the success of the charge for carrier bags.

Clause 53, insofar as it relates to Northern Ireland, amends schedule 6 of the Climate Change Act to allow DAERA to make regulations requiring the sellers of carrier bags to register with an administrator. The regulations may also make provision about applications for registration, the period of registration, the cancellation of registration and the payment of registration fees, including the amount.

Clause 56 relates to new powers to establish a mandatory electronic system to record and monitor the movement of waste. It includes powers to impose fees and charges, and to create associated criminal offences and civil penalties for the breaches of any regulations made under the powers. <BR/>The provision aims to improve the management and tracking of waste, thereby assisting in the detection and reduction of waste crime in Northern Ireland.

Clause 58 updates the powers available to DAERA in respect of the regulation of hazardous waste. That includes providing for the imposition of civil sanctions in respect of contraventions of regulations and the updating of fixed penalty amounts that can be applied in relation to offences.

Clause 62 includes new powers to allow for fees to be charged to recover costs in relation to waste management licensing of producer responsibility schemes. The powers will enable the fees and charges to be updated by way of a charging scheme. Charging for regulatory activities carried out reduces the burden on general taxation. The clause aims to ensure that the costs associated with enforcement activity in Northern Ireland are appropriately recovered — a practical application of "the polluter pays" principle.

Clause 64 ensures that the Department will have powers to direct a registered carrier to collect specified waste and deliver it to a specified site. That addresses a gap in current legislation with respect to the removal of harmful waste from a site, and its safe treatment or disposal.

Clause 68 is a technical amendment to ensure the amendments to the Waste and Contaminated Land (Northern Ireland) Order 1997 by the Environment Bill, which will confer functions on DAERA, rather than the former Department of the Environment.

I now turn to Part 5 of the Bill about provisions relating to the water environment. Clause 81 provides a regulation-making power to the DEFRA Secretary of State to make provision about the substances to be taken into account in assessing the chemical status of surface water or ground water and to specify standards for those substances or in relation to the chemical status of water bodies. Where those regulations could be made under DAERA's own powers, under clause 83, the DEFRA Secretary of State must obtain DAERA's consent. The provision will ensure that, after the transition period, the UK will still be able to update the list of priority hazardous substances and specify standards.

Clause 83, which I have just mentioned, confers the same powers on DAERA in relation to Northern Ireland to make regulations about the substances to be taken into account when assessing the chemical status of surface water or ground water and to specify standards for those substances or in relation to the chemical status of water bodies. Again, this will ensure that Northern Ireland can continue to update the list of priority hazardous substances and specify standards after the end of the transition period.

Part 8 of the Bill covers miscellaneous and general provisions and includes the final provision for which I seek legislative consent. Clause 125 gives effect to schedule 19, which allows the DEFRA Secretary of State to make regulations to amend two pieces of retained European Union law relating to registration, evaluation, authorisation and restriction of chemicals, generally referred to as REACH. These are the REACH Regulation and the REACH Enforcement Regulations 2008. The Secretary of State cannot make such regulations without the consent of the devolved Administrations, including DAERA, and is also required to consider any request by a relevant devolved authority to make regulations. The schedule also confers a power on DAERA and/or the Department for the Economy to amend REACH Enforcement Regulations 2008 independently of the DEFRA Secretary of State.

While that concludes the list of provisions for which legislative consent is being sought, I would also like to highlight the commencement provisions in clause 131 to reinforce the point that I made earlier about the implementation of these provisions being subject to the consent or approval of the Assembly. With the exception of clause 125 and its associated schedule 19, all of the provisions that I have outlined to you today require the Assembly's approval of a draft commencement order before being brought into operation. Members will, therefore, quite rightly, have the opportunity to debate the merits of the Bill's provisions before bringing them into force.

Our environment is precious in its own right, but it also contributes significantly to our economic prosperity and the physical and mental health of our citizens. Therefore, it deserves to be properly protected and improved for the benefit of all. I believe that the provisions of the Bill that I have highlighted will help us to achieve that. Accordingly, I commend the motion to the House.

Photo of Philip McGuigan Philip McGuigan Sinn Féin 6:45 pm, 30th June 2020

As Deputy Chairperson of the Committee for Agriculture, Environment and Rural affairs, I welcome the opportunity to outline the views of the Committee in relation to the LCM on the Environment Bill. I thank the Minister for his words of thanks to the Committee for its work on this and the report that it produced.

Minister Poots outlined the Bill, which contains 133 clauses and 19 schedules, many of which apply to the North. Legislative consent has been sought on the provisions that relate to devolved matters. Those are outlined in the LCM and in the Committee report.

As Members will be aware, much existing environmental policy and legislation derives from the EU and is monitored and enforced by EU institutions. The Environment Bill aims to provide a new framework for environmental governance as a result of Brexit. The Bill also provides for environmental improvement in a number of specific areas.

I wish to make clear that the Committee had very little time to scrutinise and fully consider the implications of the Bill. The provisions that apply to the North are detailed and complex. What is more, the Bill is the reintroduction of a 2019 Bill that was developed when this jurisdiction was without an Executive or a sitting Assembly. There has been no formal public consultation here on the environmental plans, principles and governance elements of the Bill. That is something that concerns the Committee, particularly given the importance of the environment for everyone who lives, works or visits here.

I will now outline the Committee’s approach to scrutiny of the Bill. The Committee took oral and written evidence in an all-day meeting on 27 February 2020. We heard from a range of stakeholders and their evidence, which can be found on our website, has been invaluable in our scrutiny. The Committee also commissioned a briefing paper on the Environment Bill from the Assembly's Research and Information Service. That paper was also very helpful and it, too, can be found on our website.

In considering the evidence, a number of key issues were identified by the Committee. The first is that the Environment Bill is a piece of Westminster legislation with provisions for the North. As mentioned earlier, the Bill provides a framework for governance and for the production of environmental regulations in a number of areas. Many of the policy principles that form the Bill were consulted on in the absence of an Executive. Neither Scotland nor Wales are participating in the principles and governance aspects of the Bill — they are making their own separate arrangements. DAERA has indicated that it does not currently have plans to bring forward an environment Bill for the North.

However, the Committee is of the view that an environment Bill for here should be developed locally, taking into account the unique circumstances, and would better deliver environmental governance and improvement locally. For example, we have a border for which rivers, lakes, pollution and waste crime have no regard. We are subject to the Irish protocol, yet the Bill fails to take account of those important matters. Therefore, the Committee recommends a standalone, bespoke environment Bill for the North. Although a consensus was not reached, the Committee recommends that a sunset clause be included in the Bill for the provisions that relate to this jurisdiction and that an environment Bill should be brought before the Assembly. Not all Committee members shared that view, as I am sure you will hear later.

The second issue that was raised by the Committee is the potential weakening of environmental protection provisions, or regression. It has been argued that the Environment Bill does not appear to have the same protections as those provided currently by the EU. Whilst refuted by the Department, the potential for lowering of environmental standards exists. Stakeholders have identified a number of areas where that risk arises and have raised concerns that the Bill does not contain a specific provision on non-regression for the North and the Committee is concerned by that.

It is critical that there should be no environmental regression. The North should act as an exemplar and should set the highest possible benchmark for delivering clearly defined and significant improvements to the natural environment. That should be applied to every Department and across all policies. The Committee recommends that a specific non-regression clause for the North should be included in the Bill to ensure that no weakening of environmental protection provisions occurs, not least because of the protocol, to which I will now turn.

The North is required to adhere to the Irish protocol and to adopt automatically any changes to the EU environmental regulations that are listed in annex 2 of the protocol. New regulations can be added to the annex, yet the Bill makes no reference to the protocol. That could have serious implications not only in terms of environmental standards but in relation to access to the EU single market. As time progresses, any divergence between here and EU legislation as a result of the Bill could have implications, for example, for the agri-food sector. Whilst the Bill aims to address governance gaps that may arise as a result of Brexit, the Committee has real concerns that governance gaps may still arise.

With six months to go, time is very limited to ensure that appropriate governance is in place. Stakeholders, too, have expressed concern at the potential for governance gaps. The Committee has also noted that the Bill makes no mention of the independent environmental protection agency that is proposed in the New Decade, New Approach deal. How will that body and others with a role in environmental protection fit in?

The Committee also has concerns around enforcement and penalties. For example, the office for environmental protection does not have powers to impose fines in the North. There is little to deter those who pollute or dump waste illegally. The devastating impact of pollution on the natural environment and on the wider community are not reflected in the fines that are imposed on those who pollute. The rewards of waste crime seem to greatly outweigh the penalties. Enforcement, and particularly the level of fines, could be much stronger.

I will now move on the clauses in the Bill that the Committee had issues with.

Clause 45 introduces schedule 2, which includes provision for environmental improvement plans and policy statements on environmental principles here in the North. The Committee noted that the Assembly does not currently have an environmental improvement plan to significantly improve the natural environment, and stakeholders expressed concern at the lack of such a plan. The Committee recommended that an environmental improvement plan should be developed and that it should be subject to full public consultation and include targets. Stakeholders also indicated that the policy statement on environmental principles should be strengthened.

Clause 46 introduces schedule 3, which allows for an office for environmental protection or OEP to be extended here. It is proposed that the OEP will replace the oversight role of the European Commission. The Committee has many questions about the OEP. Those include representation on the OEP and its role, enforcement, independence, funding and how it will be scrutinised. There are also concerns that it will look only at public bodies, that there are restrictions on who can report and that judicial review is the only means by which it can enforce its decisions. Stakeholders also raised many concerns and questions about the OEP, including how it will operate. As noted earlier, time is running out. If the OEP is to be established here, it needs to happen as a matter of urgency. The Committee recommended that the OEP be extended to the North, with a base located here and that it should be adequately resourced. There should also be an interim member from the North until it becomes operational to avoid a governance gap. The restrictions on who can report to the OEP should be removed, the ability to impose fines should be included and the maximum degree of independence should be ensured.

Clauses 47 and 48 cover producer responsibility. However, those clauses do not address the potential for that to encourage cross-border waste crime. Stakeholder concerns with those provisions included the view that they are too focused on end-of-life solutions and that there needs to be shared responsibility.

Clause 51 and schedule 8 provide the power to make regulations to establish deposit return schemes, which can bring about improvements in plastic recycling. Stakeholders raised a number of issues, including those with the retail sector, space and resources to manage the scheme, that councils will be left to collect lower-value recyclates and how it will operate locally in the light of cross-border issues. The Committee recognises the benefits of such schemes and has suggested learning from other places where such schemes are already in place.

Clause 52 allows for the making of:

“regulations about charges for single use plastic items.”

The Committee noted that England, Scotland and Wales are considering restricting certain single-use plastic items. The Committee also noted the planned EU ban on certain items for which there are suitable alternatives that are not made of plastic, such as single-use plastic cutlery, cotton buds, straws and stirrers. Stakeholder concerns included that the cost of that will likely to be passed onto customers, resulting in higher food prices.

Clause 53 allows DAERA to require sellers of single-use carrier bags to register with an administrator, applications for registration and the amount and payment of registration fees. The Committee noted that the use of revenue raised from charging for carriers bags could be used to deliver environmental improvements.

Clause 56 allows for the establishment of a mandatory electronic system to record and monitor the movement of waste. The Committee noted that DAERA has indicated that there is a project in place to deliver that system.

The Committee recommended that the definition of hazardous waste in clause 58 is extended to the North.

Clauses 81 and 83 relate to water quality. Stakeholders raised a number of concerns. The Committee is of the view that those clauses should be strengthened to ensure targets and standards cannot be weakened without thorough public consultation and independent scientific advice.

Clause 125 relates to REACH enforcement regulation. Stakeholders expressed the view that the clause should be strengthened to ensure that targets and standards cannot be weakened without thorough public consultation and scientific advice. The Committee supports that view and believes that any proposed changes should undergo public consultation.

Although legislative consent is not being sought on clause 59 on the transfrontier shipment of waste, the Committee also expressed concern at how waste is disposed of when it gets here and feels that that is an area that needs to be strengthened to prevent, for example, sea pollution.

The final section of the report concerns matters that are outside the provisions of the Bill but which will have a massive impact on its operation and implementation. The first of these relates to conventions and international laws. The Environment Bill should not contradict conventions such as the Basel convention on the transboundary shipment of hazardous waste and the Aarhus convention. Secondly, the Good Friday Agreement provides for North/South cooperation on environmental protection. The Bill may well have implications for strand two arrangements on the environment, such as North/South cooperation on water quality and, especially, the implementation of the water framework directive.

Parallel to scrutiny of the Environment Bill, the Committee is considering the Agriculture Bill and the Fisheries Bill. The Committee notes the implications of the Environment Bill for other legislation and is concerned that it does not dovetail with, for example, the Agriculture Bill as might be expected. The Environment Bill may have implications for other legislative areas such as planning.

New Decade, New Approach committed to the establishment of an independent environmental protection agency and made a number of other commitments in relation to climate change, including a climate Act. More information is required on what ministerial directives or objectives are being set in relation to the establishment of an independent agency and how this will interact with the OEP, if established. The Committee also raised many questions around the financing and resourcing of the proposals, such as the OEP and infrastructure.

Finally, the Committee noted that the COVID-19 pandemic has brought environmental issues to the fore, including the positive impacts of reduced travel on the environment and the efforts of the community to improve the natural environment through, for example, litter-picking initiatives.

In concluding my remarks as Deputy Chair of the Committee, I can say that the Committee has not taken a position on the Bill. The Committee recognises the risk of governance gaps should there be an absence of legislation to protect and improve the environment here. That said, the Committee believes that an Environment Bill for the North, taking account of our unique circumstances, is, ultimately, the way forward. I thank the stakeholders and NGOs who gave evidence to the Committee. I thank the officials for their work and for helping to prepare these notes.

Briefly, given that extensive outline of the Committee's position, I will speak from Sinn Féin's point of view. My starting point is the same point with which I concluded my comments on behalf of the Committee: without the LCM, there are serious risks of gaps in governance through the lack of important legislation.

The Bill is a result of Brexit, which, of course, the majority of people here did not support. The Committee outlined its uncertainty about the adequacy of the Bill, and Sinn Féin and I share that concern. We want a sunset clause with a short time frame to be inserted to allow the Minister, as he said, to bring to the Assembly additional legislation in the form of an environment Bill that suits the needs of the people and environment here. We live on an island, and, as reflected in the remarks that I made on behalf of the Committee, the environment and climate recognise no borders. The Bill does not take account of the protocol that we will soon be subject to. We share the concerns of the environmental lobby and NGOs that there is the potential for regression from current EU legislation. We cannot allow that to happen and therefore seek the insertion of a non-regression clause.

In the midst of a health crisis, it is more important than ever that we do not ignore another looming crisis, that of damage to our environment and climate. That is why we need what was agreed in New Decade, New Approach to be implemented. We need proper, updated and locally made environmental legislation that is underpinned by an independent environmental protection agency to regulate it.

Finally, all of this needs an overarching climate change Act, as promised in the NDNA that brought about the resumption of this institution. It was further endorsed by an Assembly motion that was supported by a majority of MLAs. We need the Minister to bring that forward as a matter of urgency.

Photo of William Irwin William Irwin DUP 7:00 pm, 30th June 2020

I welcome the opportunity to contribute to the debate today, and I welcome the Minister's comments on the issue. As we know and have debated on many occasions in the Chamber, the environment is a highly valued and important asset that must be protected in a meaningful and sensible manner. The Environment Bill is the method by which Northern Ireland, and indeed the rest of the UK, will protect and enhance the environment. Each devolved region will have the capacity to add to the various measures and powers that can be used to help protect our environment in the years to come.

What is important is the opportunity that this presents and, whilst everyone will want to maintain all the various rules that were effective in protecting the environment up to this point, it is important to have an element of control in which to react to circumstances that may be unique to a devolved region, such as Northern Ireland.

As has been voiced at Committee, and referred to by a number of people from DAERA to the Committee, the COVID-19 restrictions have hampered work on the Bill and have somewhat delayed its progress so far. Therefore, I welcome progress on the matter. The Bill will ensure that protection continues for the future, post-Brexit, and that, in Northern Ireland, we can better protect our environment with our own tailored initiatives that best suit practices here and avoid cumbersome and unreflective one-size-fits-all legislation that can, on occasions, be counterproductive, as was the case with some European directives. A lot of work has still to be done on the issue and, whilst the current restrictions limit that work, it is vital that proper work and discussions continue, in earnest, to ensure that we have a workable set of arrangements for Northern Ireland.

I welcome the general thrust of the work around this from DAERA, and the emphasis that there is no intention of making any decisions that will, in any way, reduce protections. That should be comfort to anyone, or any group, that may have concerns that the legislation signals some kind of a relaxation of the types of important restrictions or protocols that ensure that our environment continues to be protected.

In the Committee, in recent days, we heard from DAERA officials, who provided important clarity in this regard. They are on record as having stated to members that nothing in the Bill threatens existing protections. This is essentially enabling legislation, to allow further work to take place in this very important area of governance. That must now be the real focus for everyone, and I look forward to working further on this important legislation. I know that the Minister has a real awareness of the issues, and that has underpinned his ministry thus far. Indeed, I know that he has even pulled his own canoe on the River Bann, a few days ago, to see at first-hand the very real issue presented by waste in our Province. That is the sort of practical approach that must underpin this progress, to ensure that we arrive at solutions and legislation that are effective and protect, promote and enhance our environment.

The environment is our prize asset in Northern Ireland. It must be protected, and I support efforts to do so. I support the motion.

Photo of Matthew O'Toole Matthew O'Toole Social Democratic and Labour Party

I speak primarily as my party's Brexit spokesperson, though I mostly will not be talking about Brexit, the Minister will be relieved to hear. We are, however, asked to debate yet another legislative consent motion, relating to the effects of exit from the European Union. We have been asked to do it, I am afraid, as the member from the Agriculture Committee said, with insufficient scrutiny or time to think through the broader implications of the legislation and the specific interactions with the Ireland protocol. It is important that I acknowledge, right at the start, that that is not preferable or acceptable, particularly because we are going to have, as the year goes on, a large volume of further legislation and legislative consent motions to scrutinise. At least, I hope that we will, because, as we speak, the Executive should be preparing that, although we have not had much of an update on that.

Many of the aspects and intentions of the Bill are indeed welcome. It is right that, if we have to leave the European Union — clearly, I and my party did not support that — there is not a governance gap. Many of the provisions and principles that are currently provided for by European law must be converted to domestic law. That being the central purpose of the Bill, it is welcome, insofar as it goes. However, there are very specific concerns and challenges, and I will come onto a couple of them.

A substantial proportion of existing law and policy relating to environmental protection in the UK and, indeed, all member states, comes from the EU. Its implementation is largely enforced and monitored by the European Commission. The Bill, as I said, intends to replace the work of the European Commission but fails as an appropriate replacement on two critical counts. First, there is a lack of ambition on environmental protection and conservation in Northern Ireland. Just a few weeks ago, we passed a motion in this place highlighting the need to acknowledge a climate crisis. The lack of legally binding targets and of commitment to non-regression in environmental standards in the Bill is deeply disappointing. We should be aware of that as we wave through the legislative consent motion tonight. The failure to properly consider the need for specific measures and environmental infrastructure in Northern Ireland means that the Bill simply does not provide adequate protection for the environment; indeed, there are few guarantees, other than some of the verbal guarantees that we have had from the Department for Environment, Food and Rural Affairs (DEFRA) in London, that environmental standards will not be watered down. We are asked, in short, as we were a couple of weeks ago with regard to the Medicines and Medical Devices Bill, to simply take the word of the UK Government on that. As I said then, Members on all sides of the House should be well aware of the value of the words of this British Government.

Secondly, there is a distinct lack of clarity from either Westminster or DAERA on how the Bill will interact with the Ireland protocol or, indeed, how its provisions will be applied if and when the UK chooses — I hope that they do not choose, but I fear that they will — to diverge from EU environmental standards following the end of the transition period. We simply do not have enough information. That goes to a deeper point, which is the lack of information that we have generally about the devolved institutions, their application of the protocol and, indeed, the UK Government's willingness to stand behind those provisions. The Environment Bill, as I said, is yet another example of the Assembly's having to wave through Brexit-related legislation without real scrutiny and with little information on how it will impact on the environment and what it will mean for the agriculture industry.

Philip McGuigan offered the example of water quality. We are asked to take the word for it that the DEFRA officials who drafted the Bill were thinking about the specific conditions on the island, not just the Ireland protocol but the simple fact that the water in Carlingford lough, Lough Foyle and Lough Melvin does not change at the border. We need to have a properly thought through, joined-up approach to understanding not just the implementation of the protocol but how environmental standards can be managed on an all-island basis. That is not a nationalistic point; it is a simple fact of being on an island and not just sharing natural resources on an island but sharing natural resources that are completely seamless across the border. The word "seamless" is absurd, of course. As I have said, the fish in Lough Melvin and the oysters in Carlingford lough do not pay attention to which side of the border they are on, I am afraid, and we cannot expect them to do that.

I will go into a little more detail on the two critical failings that I have mentioned. The first is the lack of any real ambition for Northern Ireland with regard to environmental regulation. Environmental governance in Northern Ireland has been historically weak, not just internationally but, frankly, in relation to other parts of the UK. England has its Environment Agency. We are the only devolved area of the UK that does not have its own separate and independent statutory conservation body. Frankly, that is absurd. It is overdue.

With the UK's exit from the European Union, environmental law and governance will become even weaker. I am afraid that it started from a weak place. Representatives of the local agriculture and environment sectors have expressed their concerns that the Bill is both incomplete and removed from the specific challenges that we face in Northern Ireland. I thank them for the engagement that my party and I have had with them in recent days. As has also been said, there is no commitment in the Bill to non-regression on environmental standards. Part of the reason why that is particularly critical is that environmental standards are, as the Minister will well know, completely and intimately linked with agri-food standards with regard to food production. When it comes to the development of the new trade deals that the UK will seek to sign, we need absolute certainty that standards, whether they are environmental standards, food standards or labour standards, frankly, will not drop, and we simply do not have it. At the minute, we have verbal commitments not to regress on EU standards, but the Environment Bill fails to enshrine that in law either in Westminster or in Northern Ireland.

An effective environment strategy needs to be underpinned by local legislation. As has been said, this Bill contains no statutory basis for environmental plans or binding targets.

In relation to the governance gap, though I am glad that there will be at least some legislative provision to cover the period when the UK leaves the European Union, as I said, there needs to be some form of continuity in the statute book. The Bill does not sufficiently clarify issues around resourcing nor the interim arrangements for the proposed OEP in Northern Ireland.

We are losing the oversight and enforcement role of the European Commission and the European Court of Justice. That new body — the OEP — will be established for England, with amended function for Northern Ireland, to take on some of the European Commission roles, but there remain serious concerns regarding its independence and its robustness. There is no guarantee either that the OEP will be operational here by 1 January — the Minister may be able to give some clarity on that this evening — meaning that there may be a significant environmental governance gap if those structures are not in place. Environmental organisations here have argued robustly that that OEP needs to be fully independent of government and have stronger enforcement mechanisms. We support their calls. The OEP will only be able to issue notices in the case of breaches or initiate judicial review proceedings, which are both a lower standard than the current powers that the European Commission holds. That might be the desire of Brexiteers in London who wish to maximise freedom by lowering regulation, but it should not be what we want to do here. Frankly, it should not be what we want to do anywhere in the UK in terms of guaranteeing environmental standards.

I reinforce a point that was made by Philip McGuigan, which we support, and many others in the House. Bizarrely, there is no one from the Green Party here, but I am sure that they would support the case for an independent environmental protection agency


My apologies. I put on record my apologies to the leader of the Northern Ireland Green Party, who, I am sure, will support me in my calls for an independent environmental protection agency for Northern Ireland. As I said, we are the only country in the UK that does not have one.

Many of the policy principles in the Bill were consulted on at a UK level, as I said, while Northern Ireland was without an Executive, so parts of the LCM create a challenge for specific parts of industry here. I am sure that the Minister has consulted specifically with the food and drink industry around packaging and the specific challenges that it has. I am sure that he is engaging with them on that.

I will move on briefly to discuss challenges around the protocol and the lack of consideration of the Ireland protocol in relation to the delivery of the Bill. As I said, it was developed without, as far as I am aware — I could be told differently — specific detailed consideration of the application of the Ireland protocol or the post-Brexit position of our environment and agriculture sectors. That is frustrating, and it is particularly deeply frustrating given how little time we have had to consider or scrutinise the Bill. Due consideration has not been given to the potential impacts, as I said, of regulatory divergence between Great Britain and the European Union; indeed, there is no specific reference in the Bill to the protocol at all. If there are any attempts to circumvent or circumnavigate the protocol in how the regulation is applied here, it will, no doubt, have implications for our access to the European single market. It is one of the advantages of the Ireland protocol that our producers here continue to have access to it. If there is any uncertainty about the application of the protocol in relation to, for example, the environmental provisions and how they interact with food production, that could present challenges to our access to that market. I am sure that no one here wants to see that.

A list of potential divergence issues are completely unclarified in the Bill. They include issues around, as we have discussed, water quality, particularly in relation to river basin districts, so many of which, as we know, are cross-border; cross-border waste disposal; labelling and packaging requirements and costs; and questions around judicial review of branches of environmental law, specifically as it relates to cross-border activity. There is a lack of clarity on who will be responsible for enforcement. There is, as I said, no mention in the Bill of who will take precedence should, for example, Northern Ireland find itself non-compliant with the protocol by implementing UK law that is divergent from EU standards in a dramatic way post transition. Those are all questions that we simply do not have answers to.

Mention has also been made of common frameworks across the devolved regions. Many of the areas under the Bill have been identified by the Cabinet Office as areas for a common framework, but we still do not have enough detail from the Cabinet Office around those common frameworks. I am sure the Minister will agree that we need more from the Cabinet Office on that.

In summary, while I agree with the principle of avoiding gaps in our environmental provision post the end of the transition period, I am afraid that the Bill is a long way from covering it. I cannot, on the record, support the legislative consent motion. We are not going to oppose it, force it to a Division or anything like that. We support some of the provisions, but, as I said, this is nowhere near ambitious enough for environmental protection in Northern Ireland, and nor is there anywhere near enough detail on the application of the Ireland protocol and how it affects everyone in Northern Ireland. We need much more on that. We need it from the Minister's Department, we need it from the UK Government, and we need it urgently, I am afraid.

Photo of Rosemary Barton Rosemary Barton UUP 7:15 pm, 30th June 2020

While we debate the extension of the provisions of the Environment Bill to Northern Ireland, let us not forget that the Bill before us is a complex one with very limited scrutiny time. There are 57 of its 133 provisions that apply to Northern Ireland.

The Bill is in two parts. The first is a legal framework for the new environmental governance and accountability that, it is hoped, will address any environmental governance details that have been excluded as a result of exiting Europe. In general, the second part concentrates on improvement of the overall quality of our environment, such as providing for a cleaner environment through better waste and resource management, leading to greater efficiency and an improvement in air and water quality through education and individual and collective responsibility. The second part of the Bill also recognises the need for biodiversity conservation to keep our natural ecosystems functioning and healthy.

The original Bill was introduced at Westminster in 2019 as UK legislation and had Northern Ireland provisions added because, at the time, Stormont was not operational. As a result, there are several issues in the Bill that may cause concern for Northern Ireland as it works towards a cleaner, brighter environment. There is concern that the Bill may bring about a weakening of environmental protection, leaving the UK with less protection than that provided by the EU. However, with environmental improvement plans and the importance of maintaining and protecting the environment, hopefully it will reflect that we do not need to be concerned.

There are also uncertainties around the Northern Ireland protocol. There are concerns that the Bill makes no specific reference to the protocol, which may have implications for Northern Ireland in terms of environmental standards and in relation to accessing the EU single market, for example, for our agri-food sector. Another source of unease is that the governance gaps can still prevail because of exit from Europe. While the Environment Bill attempts to prevent those gaps from arising through the development of an environmental plan for Northern Ireland, there are still many unknowns.

With regard to the establishment of an office for environmental protection, there is no reference to the independent environmental protection agency proposed in New Decade, New Approach. There is also no reference to the potential overlap of those organisations and the overlap of the enforcement bodies such as the Northern Ireland Environment Agency (NIEA). There is a need for clarification around the roles of those organisations and their recognition.

It is because of those issues that it may be necessary in the future to bring forward a bespoke Northern Ireland environmental Bill, something that Scotland and Wales are working towards presently.

The Bill contains a further number of clauses specifically addressing waste and resource efficiency in Northern Ireland. Those clauses are welcome. They include provisions on electronic waste tracking, the shipping of waste and enforcement powers to discourage waste littering. There are also number of recyclable and reusable clauses applicable to plastics. Furthermore, there are a number of clauses that relate to air quality through the Clean Air Act, with clauses setting out requirements for the need to maintain and improve water quality standards. While there are some issues that may be of concern, the majority of the provisions are welcome, so the Ulster Unionist Party will be supporting the Bill.

Photo of John Blair John Blair Alliance 7:30 pm, 30th June 2020

I thank the Minister for his statement and the fairly extensive detail given. On behalf of the Alliance Party, I support the LCM, although I should probably say at the outset that colleagues and I see this as a holding position, an interim measure and a framework on which to build a Bill and policies bespoke to Northern Ireland. That will probably come as no surprise to others, including those who sit with me on the Committee for Agriculture, Environment and Rural Affairs.

As the only region in the UK and Ireland without an independent environmental protection agency, a climate change Act or specific net zero emissions targets, Northern Ireland is in urgent need of new policies that will protect the environment and restore nature. Some Members will be aware that the 'State of Nature 2019' report illustrated clearly the alarming rate of habitat and species loss. The Assembly will, I hope, commit to sufficient resources to honour pledges already made to ensure adequate progress and protections going forward.

The proposed Environment Bill goes some way towards addressing the environmental governance gaps that our exit from the European Union exposes, however there are a number of issues that remain and which need addressed. We need mechanisms for ensuring that future environmental improvement plans are sufficiently ambitious, deliver meaningful improvement and are relevant to Northern Ireland. Clarification is required around the relevance of and the role for Northern Ireland within the proposed Office for Environmental Protection how that sits with the independent environmental protection agency for Northern Ireland as promised in the New Decade, New Approach agreement.

Furthermore, the Environment Bill outlines that there would be one Northern Ireland representative on the OEP regulatory body. The obvious questions that stem from that are: who will that be; how will they be appointed; and from what sector will they come? The process for appointment, at this stage at least, is completely unclear. The Environment Bill also tells us that DEFRA will report to Westminster every two years on international environmental protection legislation. That does not, it appears, cover Northern Ireland-based detailed scrutiny, and that is another concern of mine.

There are, however, some positives and areas of the Bill that are appropriate to Northern Ireland and which address the specific environmental governance challenges. I am pleased to see the inclusion of polluter pays principles, considering the legacy of environmental problems such as river pollution, and I look forward to seeing the policies and the will to carry them through.

The Bill obviously, as I referred to a moment ago, gives us some continuity on environmental protection from the date of EU exit. On the subject of that EU exit, as has been referred to already this evening, Northern Ireland is the only part of the UK that shares a land border with a European Union member state. That gives added importance to the need to maintain existing EU standards and to improve upon those further. This also gives us a serious and timely caution on non-regression.

The Republic of Ireland will still be operating under the EU framework, and, if Northern Ireland has a significantly different legislative framework or lower standards, it could be more challenging for us to work collaboratively with our neighbours to protect our shared environment. Few would doubt that, whatever drawbacks there have been, the existing threat of EU fines over the years has served as an effective deterrent on many environmental protection matters. I would have preferred a non-regression clause to be included in the Bill, and I hope that subsequent Bills, strategies and policies can address that shortfall.

With a view to those future solutions and improvements, to build on recent positive statements and initiatives from DAERA and, despite the concerns that I have expressed, to ensure cover going forward, I am happy, on behalf of the Alliance Party, to support the LCM.

Photo of Sinead McLaughlin Sinead McLaughlin Social Democratic and Labour Party

I thank the Minister for his very detailed statement and briefing. This LCM is another unfortunate example of a Bill on which we have been unable to get enough clarity. It is another indication that the UK Government is facing in several different directions at once. Wales and Scotland are developing their own environmental protection agencies, and it is no wonder. Let us recall, for a moment, the New Decade, New Approach agreement to which the UK Government devoted immense time. It referred, very explicitly, to the environment and climate change. The 'New Decade, New Approach' document stated:

"The Executive should bring forward a Climate Change Act to give environmental targets a strong legal underpinning. The Executive will establish an Independent Environmental Protection Agency to oversee this work and ensure targets are met."

When the SDLP held the Ministry, attempts were made to progress both of these hugely important environmental initiatives but, inexplicably, they were thwarted and blocked at Executive level. We need to resurrect the commitments made in the 'New Decade, New Approach' document.

It is obvious, and it should be obvious to the British Government, that the situation in Northern Ireland is different from England. We have a land border. We have cross-border production built into the agri-food sector. Many of the environmental matters underpinning this legislation are different here from those over the water. Yet we have so little time to properly scrutinise the legislation. We do not have the opportunity to consider, in detail, the specific implications of this legislation for Northern Ireland — that is just not good enough.

We will support this LCM. We are not totally happy with its contents, but the alternative is to have no environmental governance. The SDLP will seek to make amendments to the Bill in Westminster to make improvements that have more cognisance of our unique position in the North.

Photo of Clare Bailey Clare Bailey Green

This Assembly is being asked to endorse the extension of these provisions to Northern Ireland, but these extensions are sub-power provisions. They are still under scrutiny in Westminster, yet we are being asked to rush them through, despite knowing that we are doing so without adequate scrutiny. Why are we being asked to endorse provisions that are not even law yet and that do not work for us in our context? Most importantly, we still have the option to amend and improve them.

I have listened to the Brexit and Environment group, which has spoken of their concerns that this legislation has been developed for England, made common by default, fine-tuned for England but not tailored to the needs of Northern Ireland. That is hardly surprising, given the absence of an Executive during the Assembly's three-year hiatus and the lack of formal public consultation, at a Northern Ireland level, and the principles and governance aspects of this Bill.

We are facing huge issues in governance and enforcement gaps, and the provisions extended to Northern Ireland do not adequately address those in the Bill's current form. This Bill and its provisions as they stand in relation to Northern Ireland are simply not good enough. It does not meet our needs. It does not adequately address the issues that we face. We need to develop our own environmental legislation that is specific to our context and is aligned with the Ireland/Northern Ireland protocol. This is nothing close to that, so I find it hard to support the LCM. If we are to pass legislative frameworks to protect our environment at least let us get it right, because time is running out.

When we look at the provisions of the protocol, not only does much of this Bill not fit the Northern Ireland context, in some cases it limits and restricts it. The Environment Bill's provisions, both UK-wide and NI-specific, have not been tested to see if they are compliant with the protocol. In fact the Bill, as other Members have mentioned, makes no reference at all to the protocol. Quite frankly, that is unbelievable.

We know that adherence to the EU environmental standards contained in the protocol is how Northern Ireland businesses will be able to access the single market. We know that Northern Ireland is required to automatically adopt any changes to the EU environmental legislation listed in annex 2 to the protocol. We know that Northern Ireland will find itself extremely vulnerable to the impact of divergence between GB and EU law. Any such divergence would have implications for the protocol and for access to the EU single market.

What we do not know is how the protocol will impact on the UK's ability to create common environmental frameworks. Will Northern Ireland be subject to the enforcement powers of the European Commission and the Court of Justice of the European Union (CJEU) for the protocol, and to the OEP for everything else? If Northern Ireland finds itself non-compliant with the protocol by implementing UK law or vice versa, which takes precedence?

We do not know the answer to those questions because the Bill has not been tested to see how it will interact with the protocol. How is it that we are being asked to endorse the extension of these provisions to Northern Ireland when no consideration has been given to our local context?

The issue of non-regression has been mentioned by several Members, and it is hard to ignore the criticisms consistently levelled at the Bill by experts charged with its scrutiny. The House of Commons Environment, Food and Rural Affairs Committee has stated that the Bill's provisions are not equivalent to current EU environmental standards, and that, in some areas, they mark a significant regression from current standards. That is unacceptable. It is essential that the Government commit to non-regression in the Environment Bill.

Let me remind you that non-regression is an environmental and legal concept that requires regulations and standards that should not be diminished. A strong version of non-regression does not just prevent a row back, but requires continual advancement in environmental law and commitments. Experts have told us that non-regression is essential for us to meet environmental obligations. How, then, does the Minister account for the fact that the Bill contains no non-regression provision at all for Northern Ireland?

Government and departmental officials have indicated that they have no intentions of weakening environmental protections. That should not need to be explained, but it seems that it must: aspiration and intent do not equate to legislative protection.

Northern Ireland is facing monumental environmental disaster. Of the designated special areas of conservation here, 98% exceed critical levels of ammonia. More than one in 24 deaths here are linked to air pollution and, if we keep going along our current trajectory, a considerable proportion of this region will be under water by 2050.

Intention is all well and good, but let us be honest: there is also form here. Our track record is dismal. How can we trust that there will be any change, when time and again we have allowed environmental destruction to occur unchecked? Aspiration is inadequate. We need a straightforward and substantive commitment to non-regression of environmental law that is written and included in the provisions for Northern Ireland.

The Minister must do his job and get this law right. That is how we will get this done. Anything else, and anything less, will just not be good enough.

There are other issues to touch on, such as agriculture and fisheries. Not only does this Bill not align with the protocol, it does not even align with the other Bills, the Agriculture Bill and the Fisheries Bill that we have been told that we have to give legislative consent to.

We are passing laws that are contradictory to each other and we have no provision to monitor their implementation or revise them when they are not working.

It should also be noted that, after the House gave legislative consent to the Agriculture Bill, Westminster was still working on it and it is still working its way through the Committee Stage and the Commons. After we gave legislative consent, Westminster then voted, with the support of the Minister's party colleagues there, to lower the environmental and food standards contained in the Bill. I call upon the Minister to address that by engaging with Westminster to ensure that we have laws that work in practice.

We look at water quality, and it was absolutely great to see the Minister pictured yesterday in his kayak on the river with local people cleaning up the River Bann. While we share the Minister's concerns at the shocking levels of pollution and waste in our rivers, we are not as shocked, because we know, we have been watching, we see it and we hear it from people who continually tell us about the pollution, the damage and the waste in our rivers. Our waterways are already in a deplorable condition, with only 31% of our rivers classified as being in good or better condition. The River Faughan experienced five major pollution incidents between Monday and Friday last week alone. Is the Minister working with his Executive colleagues, including the Minister for Infrastructure, to stop that happening and to identify the polluters and hold them accountable?

The Bill gives DAERA the power to change regulations around the protection of our water. However, there is no requirement for those changes to be positive. We need to see a clear commitment in the Bill to make sure that any change to water regulations and any standards are positive, and I call on the Minister to act to ensure that that is the case.

There is a simple reality that is not being engaged with here, and that is that we live on a shared island. That is not contained in the Bill, but that is our context. We share our nature and biodiversity, our air and our waterways. We share three transboundary river basins with the Republic of Ireland. Changes to the way in which we monitor water quality and any weakening of standards will affect those north and south of the border. At a time when North/South collaboration is so critical, why are we creating barriers to that cooperation on shared environmental issues?

I want to mention Aarhus rights, and I know that the Deputy Chair of the Committee mentioned that. The removal of Aarhus rights from the Bill — rights relating to public participation, public access to information and public access to justice — is a matter of huge concern for me. Article 8 of the Aarhus convention, to which the UK is a signatory, requires effective public participation in changes and decisions that can significantly affect the environment, and yet no public consultation took place at a Northern Ireland level on the contents of these provisions. Does the Minister agree that these rights are important? Can he enlighten us as to why there is no mention of the convention? Why has that been removed?

In conclusion, I find the evidence of the Bill quite damning. The Bill and its provision relating to Northern Ireland are not good enough. The Ireland/Northern Ireland protocol has either not been considered or just not been addressed. There is no substantive commitment to non-regression or environmental law in Northern Ireland. The provisions relating to water quality do not instil any confidence that there will be no further deterioration on our rivers, lakes and coasts. The questions remain around public access to environmental justice. Let us not forget what is at stake here. It is our future and our homes. Are we willing to accept a future outside the EU with lower environmental protections? As Greens, we will not.

It is my belief and the belief of my party that the provisions of the Bill relating to Northern Ireland pose a threat to our environment, but this is not a done deal. We can do better and here is how: work to amend the Bill. It is great to hear that our SDLP colleagues will be doing that. I am calling on the Minister and everyone else to do exactly the same. Include a substantive commitment to non-regression. Include a sunset clause for Northern Ireland so that we can create our own environment Bill that reflects our unique context.

The Scottish LCM, on the extension of the Environment Bill provisions to Scotland, was recently postponed due to their serious concerns about the content of the Bill. Why can the same not be done here? Fix this Bill, and bring this LCM back when the provisions will work to protect our environment. Westminster has shown no regard for the consent of this institution for previous LCMs, this one will be exactly the same.

As it stands, I cannot endorse the extension of these provisions to Northern Ireland. We have an unprecedented opportunity to build back better with a just transition. To not do so is a dereliction of our duty. Thank you.

Photo of Justin McNulty Justin McNulty Social Democratic and Labour Party 7:45 pm, 30th June 2020

I thank the Minister for his statement on the LCM. I welcome parts of his statement.

Unless we act strategically and in harmony across these islands and, indeed, across the continent, we are facing a climate and ecological crisis, and the North of this island's unique and iconic environment will be under significant threat. Decades of insufficient environmental governance have led to significant environmental damage. The 'State of Nature 2019' report clearly demonstrates that our terrestrial, air quality, water and marine environments are suffering, with species and habitats being lost at an alarming rate.

Extensive regulatory dysfunction and unacceptable levels of disregard and the non-compliance of environmental law have resulted in substantial degradation to our environment and have had significant social and economic costs. Environmental NGOs have long argued for regulatory reform and the need for independent regulatory and statutory nature conservation body, as the Northern Ireland Environment Agency is an Executive agency within DAERA and not an independent body and only has limited functions. We are the only part of these islands without an independent public body charged with protecting and enhancing the environment.

The majority of environmental law here comes from the EU, and we have benefited from the further environmental governance provided by the European institutions, particularly the European Commission and the CJEU. The significance of this oversight is highlighted within national UK law and does not sufficiently enforce environmental law nor provide effective remedies and sanctions for breaches.

Following the transition period, the loss of oversight from EU institutions such as the EU Court of Justice risks further weakening of the environmental protection across the North where the threat of fines from the EU has long provided the greatest deterrent. There is a clear and urgent need to replace the lost oversight of the EU institutions. Brexit cannot be allowed to be used as an instrument to reduce environmental standards. It is more important than ever that we seek to proactively protect, recover and enhance the environment to ensure that nature is in better condition for future generations. We have responsibility for the stewardship of our environment: a clean healthy and well-protected environment that supports a sustainable society and economy. It is our duty to protect and improve the environment, as it is a valuable asset for the people of Ireland, and to protect all ecosystems, animals and ecology from the harmful effects of pollution.

I, therefore, welcome the introduction of the Environment Bill and its provisions. However, I strongly recommend technical and substantive changes to the Bill to include more detailed and rigorous protective measures to ensure that it effectively protects and enhances the environment. The proposed office for environmental protection will monitor and report on environmental progress. This includes environmental improvement plans and targets, report and advise on changes to environmental law and take enforcement action on potential breaches of environmental law by public authorities, with its principal objectives being environmental protection and the improvement of the natural environment.

If the Environment Bill is enacted unchanged, the OEP will be responsible for monitoring the implementation of environmental law and taking action when public authorities are not implementing it properly. The OEP will be able to receive and investigate complaints from the public and initiate their own investigations into breaches of environmental law. The OEP will be able to provide advice and decision notices that inform the relevant public authority of its failure to correctly implement environmental law. In instances in which there is a serious failure or need for urgent action to comply with environmental law, the OEP can apply for judicial review of the public authority's action or lack thereof. Unlike the EU, however, the OEP will not have the enforcement power to impose penalties such as fines in instances in which public authorities continue to fail to comply with environmental law. That is obviously a major worry, as, if there are no consequences to breaches of standards, we may be open to major environmental exploitation.

DEFRA has said that it has plans for the OEP to be operational immediately following the end of the transition period, on 1 January 2021. Given the pandemic, is that date achievable and realistic? That is part of the reason that our party has strongly sought an extension to the transition period. The Environment Bill does not sufficiently clarify issues surrounding resource and interim arrangements for the OEP here in the North.

Subject to the NI provisions in the Environment Bill being commenced, a dedicated member from here will be appointed to the board of the OEP, yet that appointment process lacks involvement of or oversight by the Assembly. The Bill does not clarify the timescale for when the OEP is expected to become operational here. No interim governance arrangements are proposed, so the OEP must be operational by 1 January 2021 to avoid any gap in governance. If the OEP does not receive legislative consent and no other governance mechanisms are established for Northern Ireland, the only mechanism for challenging the legality of public authority decisions would be for civil society to apply for judicial review, which is a resource-intensive process. There is therefore a significant risk of a widening governance gap in the North in the case of a no-deal Brexit. Although the OEP will provide oversight of the implementation of environmental law as it is currently established in the Environment Bill, there remain limits to both remit and enforcement powers.

Also of concern is the fact that the OEP will be responsible for monitoring the actions of public authorities and that it is limited to providing decision notices. There is therefore a clear need for the establishment of an independent statutory nature conservation body for Northern Ireland that will monitor the actions of individuals and organisations and that can take enforcement actions that can include, amongst others, financial penalties and civil sanctions.

An independent environmental protection agency could be responsible for implementing environmental law through, for example, licensing, monitoring the implementation of environmental law and taking enforcement action when individuals or organisations are in breach of the law.

The Bill provides a framework on which the Assembly could work to ensure the protection and enhancement of the environment. That work must commence apace. The environment cannot wait. The environmental principles, including integration, prevention, precaution, rectification and polluter pays, as well as the duty on the Minister to prepare a policy statement on the need to apply proportionally the principles in the development of policy, are to be welcomed. Enforcement is key. The Bill requires DEFRA, in the process of introducing new environmental regulations, to lay before Westminster a statement indicating that Ministers view the proposed Bill as not having the effect of reducing the level of environmental protection currently afforded by existing environmental law. That provision does not extend to the North but will apply to Northern Ireland as a reserved matter. That demonstrates a lack of environmental ambition. No regression is not enough. In the Bill, there are currently no provisions relating to targets or time frames for Northern Ireland.

The Bill in its current form does not achieve what has been promised, namely gold standard legislation, global leadership for responding to the environmental crisis and a world-leading watchdog. The Minister should set out a straightforward and substantive commitment to no regression on environmental law and to enhancement of environmental standards in the Northern Ireland provisions in the Bill. The duty to apply that and environmental principles should be strengthened to apply to Ministers and public authorities in the development of legislation, policy and decision-making.

The Assembly and DAERA should legislate for NI-specific environment, agriculture, climate change and fisheries Bills that provide for the protection and enhancement of nature, with standards that set the bar high and that can harmonise across this island and this continent. The Minister should develop the environment strategy to function as a long-term environmental improvement plan. That should be underpinned by an independent environmental protection agency and time-bound targets, covering terrestrial, air, water and marine environments. Without those, the government system here will be incomplete and less effective. Subsequent secondary legislation policies or strategies that come from those Bills — for example, the environmental strategy — should be shaped not around the principle of non-regression but around enhancement and ensuring that environmental protection is not watered down.

A robust Northern Ireland environment Bill, with sufficient associated funding, will deliver a significant benefits for the environment, our health and well-being, the economy and the prosperity of future generations. We support the LCM but qualify that support. There are too many gaps and too few protections.

Photo of Rachel Woods Rachel Woods Green 8:00 pm, 30th June 2020

From the outset I reiterate and emphasise that no formal public consultation took place in Northern Ireland around the environmental plans, principles and governance elements of the Environment Bill. Consultation happened UK-wide while Northern Ireland was without an Executive and with no sitting Assembly. It should then come as no surprise that the legislation is designed for England. The Bill is not tailored to the needs and aspirations of Northern Ireland and nor do the provisions extending to Northern Ireland adequately address the major issues that we face in environmental protection and the huge governance and enforcement gaps that lie ahead.

The legislative consent motion before us asks if we endorse the principle of the extension of the provisions. Like many others in the Chamber, I understand the urgent need to plug the legislative gap that leaving the EU will create with regard to environmental protection, but, unlike many here, I will not endorse the extension of the provisions of the Environment Bill as they stand. The Environment Bill in its current form and its provisions relating to Northern Ireland are insufficient and wholly inadequate to enable us to protect our environment.

Clauses 45 and 46 and schedules 2 and 3 deal with environmental governance and the office for environmental protection. Those parts of the Bill do not address the potential for overlap between the work of an OEP, as proposed, and, indeed, an independent environmental protection agency, as was promised in the 'New Decade, New Approach' document and that the Assembly voted for five months ago. Let us be clear: the OEP, as proposed, will have no powers to issue fines. Even though fines from the EU are rare, this removes the threat of fines, which is a highly effective tool. It will simply have no teeth.

The Bill attempts to address the concerns over the OEP's independence by requiring:

"The Secretary of State ... have regard to the need to protect" the OEP's independence. However, that could easily be eroded in practice. The Secretary of State plays a major role in the appointment of members. They will appoint non-executive members who will then appoint the executive members. With regard to funding, paragraph 12 of schedule 1 states that the OEP will receive:

"Such sums as the Secretary of State considers are reasonably sufficient to enable the OEP to carry out its functions."

None of those provisions adequately ensure or protect the independence of the proposed body.

There is provision in the Bill for a specific Northern Ireland member to be appointed to the OEP board, but the Northern Ireland member would be appointed by DAERA. No provision is made for the appointment to involve or to allow involvement and oversight from the Assembly. Part 1 of schedule 3 provides for the OEP to report on environmental improvement plans, and part 2 provides for the OEP to report on monitoring and reporting of environmental law. Those reports are to be laid before the Northern Ireland Assembly, and yet, for some reason, the reports on environmental law are optional. I ask the Minister why that is. Paragraph 3 of schedule 3 provides for the OEP to offer DAERA advice on changes to environmental law, but there is no automatic requirement that that advice be communicated to the Assembly; instead, DAERA:

"may, if it thinks fit, lay [the advice] before the Assembly".

That is simply not good enough.

A crucial element of environmental enforcement is the ability of ordinary individuals to provide information and to help initiate actions by an enforcement body. That process is currently facilitated by a complaints procedure to the European Commission. The Bill provides for complaints by individuals to the OEP but includes an unnecessary restriction through excluding individuals who exercise "functions of a public nature". That will surely limit the number of admissible complaints and, therefore, enforcement. Judicial review is an option only where there will be serious damage to the environment and/or human health. It remains the strongest tool for the OEP and is very insufficient.

Schedule 3 does not refer to the interim environmental governance arrangements in the time following the transition period, so the OEP must be operational by 1 January 2021 to a avoid gap. Paragraph 4 of schedule 1 gives powers to DEFRA to appoint an interim chief executive until the OEP becomes operational, but there is no provision for an interim NI member, something that has been suggested by the Northern Ireland Environment Link. However, overall, having a token member on the OEP will not suffice. An office based in Northern Ireland would be required with appropriate staff and the resources to ensure effectiveness. Reporting restrictions on individuals who exercise "function of a public nature" should be removed, and there should be an alternative enforcement to judicial review with at least the power to issue fines.

Our core objective for environmental governance in Northern Ireland should be to establish an independent environmental protection agency that supersedes all other bodies. That was agreed in 'New Decade, New Approach' and voted for by the Assembly, I reiterate, five months ago.

I turn now to the governance gaps. As it stands, DAERA does not have any plans to take forward an environment Bill for Northern Ireland. If the UK Environment Bill does not go forward, it says that it is unlikely that there will be governance arrangements in place in time. We may end up with a gap at the end of this year where we do not have environmental principles or oversight. DAERA has also indicated that, if the Bill gets legislative consent and is implemented, that will not prevent Northern Ireland making changes to it or doing additional things that it wants to. However, while the Bill offers opportunities to address governance gaps that may arise as a result of leaving the EU, gaps may still arise; for example, during the period it that takes to develop an environmental improvement plan for Northern Ireland or until an OEP is established here to take over the functions currently performed by the EU.

If the Bill passes in its current form, there will still be governance gaps in places where EU institutions have exercised governance functions, such as preparing legislation, conducting evaluations, sharing data or overseeing enforcement. The OEP proposes to address the gaps that will emerge in relation to enforcing EU law, but it does not do so in a complete fashion. Other gaps, such as the lack of sharing of environmental information through membership of the European Environment Agency, remain unaddressed. There may be governance gaps in terms of the independence of the OEP and Northern Ireland's limited representation on that. A number of stakeholders have expressed their desire for greater emphasis to be placed on the Assembly's oversight and scrutiny role over aspects of the Bill such as the OEP. COVID-19 and time pressures resulting from the pandemic may also impact on the time frame required to make provision to deal with potential governance gaps.

I turn now to the environmental improvement plan. Clause 45 and schedule 2 contain provisions on environmental improvement plans that require DAERA to take forward a policy statement on environmental principles. Unlike England, Northern Ireland does not have a current environmental improvement plan. Paragraph 1 of schedule 2 provides for a plan to be created within 12 months of the Bill coming into force with the provision that, until then, the current plan is the default. However, as I say, Northern Ireland does not have a plan. This risks an immediate governance gap.

Clause 7 states:

"An 'environmental improvement plan' is a plan for significantly improving the natural environment" but there is no indication of what "significant" means or how improvement will be measured and against what benchmark. Lack of specificity — I will move on, as I cannot do that word — in the wording allows scope for trade-off, weakening or poorer performance in some sectors against better performance elsewhere so long as the vague overarching goal of improvement is achieved. Improvement from a low benchmark would satisfy the requirements of the Bill but arguably fail to deliver the environmental improvement that is required to meet the Government's commitment to a net zero by 2050, amongst others. This is particularly relevant for Northern Ireland, as it comes in a context of poor environmental history and considerable environmental issues. Northern Ireland needs to improve, but, more than that, it needs to be ambitious.

I turn now to the environmental targets and principles. No specific targets are provided for in the provisions for Northern Ireland, nor are any timelines specified. Without targets and timelines, the system of environmental governance proposed for Northern Ireland will be significantly weaker than that for England. It will leave Northern Ireland's environmental governance architecture incomplete and potentially ineffective. Clause 1(2) only requires that at least one matter within each priority area be addressed, which leaves open the possibility of a piecemeal approach. The Secretary of State is responsible for ensuring that the targets are met and can also revoke or lower them where costs are deemed inappropriate. If a similar approach were taken in Northern Ireland, the already weak approach to environmental protection would not improve, especially if political will in favour of environmental protection declines. Greater reference should be made to the international standards based on expertise with minimum standards and more aspirational targets such as the UN sustainable development goals. Part 1 of schedule 2 leaves it up to the Department to decide what data it considers appropriate for the purposes of monitoring environmental improvement, but that should not be done without requiring coordination with other parts of the UK, the Republic of Ireland and the European Environment Agency.

Where is Northern Ireland's environmental improvement plan? The Department must bring one forward as soon as is feasible. The draft Northern Ireland environment strategy could be developed into a Northern Ireland environmental improvement plan if it contained clear targets and addressed some of the core concerns highlighted in the consultation. The Department has already indicated that the environmental strategy could be redesigned and redesignated as an environmental improvement plan without the need for further consultation.

Northern Ireland must introduce specific targets, not a copy-and-paste from the Bill proposed for England but targets that address the core issues for Northern Ireland. The Minister and Department should, therefore, identify suitable priority areas, building on those in the Bill for England and extending them to include Northern Ireland's core issues. Northern Ireland should then, at a minimum, set legally binding environmental targets for those priority areas.

The Bill fails to include priority areas such as soil quality. Soil health is an essential element of our environment and should be included in environmental targets. The lack of EU-derived legislation on that issue makes the role of targets here even more important.

Ideally, targets should be time-bound and front-loaded. Any review of an environmental improvement plan should be undertaken by an independent regulator or statutory nature conservation body. Policy statements developed on the environmental principles should not be subject to vague proportionality reasoning that allows for a trade-off between environmental principles and economic considerations.

DAERA should commit to working with the UK Government, the Republic of Ireland and the European Environment Agency to ensure that a common approach to data is adopted and enable effective, cross-cutting solutions to be devised on the basis of a shared understanding of the problem and consistent measurement approaches. The Northern Ireland Act 1998 provides for cross-border cooperation in environmental protection, so we already have it there.

The question before us today is a simple one: will we accept a future outside the EU with fewer environment protections? We, as Greens, will not accept that. The Bill and its provisions relating to Northern Ireland are not good enough. The proposed office for environmental protection will never fulfil the potential of the independent environmental protection agency that the Executive parties agreed to and the Assembly voted for. The governance gaps, the lack of an environmental improvement plan, targets and principles all need to be addressed. The Bill's architecture is not suited to the Northern Ireland context. It is not tailored to Northern Ireland's needs, so we call on the Minister to fix those problems through engaging with Westminster or bringing forward a Northern Ireland environment Bill. We need substantive commitment to non-regression. When it comes to our environment, we must not accept less protection or risk the erosion of our current standards. We must demand more. For those reasons, I will not support the LCM.

Photo of Edwin Poots Edwin Poots DUP

A number of issues were raised by Members. A number of the same issues were raised by a range of Members, and I will seek to respond to them.

Interestingly enough, one of the first issues that was raised was one of the last that was raised, and that was non-regression. I have to ask the House a simple question: who is regressing? Who is granting regression? Nobody is proposing regression. There is nothing in the Bill that facilitates regression. Regression will happen only if the House decides that it wants to reduce environmental law. Regression lies in the hands of the Assembly, so regression is a straw man and should not have any bearing on people's views of the Bill: there is nothing in the Bill that creates regression. The only opportunity for regression is if Members wish to regress in environmental law.

Time is of the essence. People may have great aspirations. There is nothing wrong with having great aspirations for the environment, but, at this moment in time, we are leaving the European Union properly on 31 December. We will not do what some Members would wish us to do in legislation by that time, so we need to do what we can do. What we can do in terms of this legislation is ensure that nothing changes, nothing is reduced and we are not in a worse position than we currently are. That is what will happen if the Bill passes. The notion that we can legislate for something other than the OEP is for the birds.

Mr McGuigan raised the issue of fines not being high enough. That was after his having raised the issue of the independent environmental agency. Who imposes the fines? Many of the fines that are actually in law are unlimited, so who institutes the fines? Is it some politician who does not want to fine the individuals enough, or is it some government body that is influenced by politics? No. It is the independent courts. So, if you are looking for independence, and then you complain about people who have independence, the argument does not stack up particularly well.

The OEP can be extended to an exclusive Northern Ireland body, and the Assembly can decide that. If we want to break away, that too is a matter for the Assembly. It is not something that we are stuck to. However, a Northern Ireland member will be appointed by DAERA, and that member will be expected to have experience in environmental law, science and/or regulation, so that is what will be expected of us.

In terms of a regulatory body to deal with the private sector, the NIEA is, has been and will continue to be the regulatory body that deals with the private sector. No gap is created by introducing the OEP. The work of the OEP simply replaces the work previously carried out by the European Commission. It does not change it; it replaces it. It does the same work and takes the same actions. Therefore, the argument about regression and a move backwards is not something that can be backed up.

There is nothing to stop the Assembly or my Department introducing our own environment Bill. The LCM is something that we are bringing to you now that will ensure that the environmental protections that we currently have are not diminished. Therefore, not agreeing the LCM, as the Green Party suggests, would be foolhardy. It is like Emperor Nero fiddling while Rome burns. In this instance, whilst the Green Party fiddles, the environment burns.

Some Members raised the idea of a sunset clause. What is the benefit of a sunset clause? It merely puts pressure on you to reach a particular date. If you do not reach it, you lose the protections. Therefore, having a sunset clause in a Bill such as this is a high-risk activity. It is much better to have something that offers protections. Then, if we devise something better, we can put it through the House, approve it and implement it, but a sunset clause does not help us to do that.

Some suggested that the Bill does not provide adequate standards. Mr O'Toole was one of the Members who suggested that. He has gone. He must not have been satisfied with the European Union, because we are implementing its laws and standards and they will carry on. So, Mr O'Toole, who seems to be very fond of the European Union, must not be particularly satisfied with retaining the European Union regulations, because the Bill is doing that. Again, if divergence is to take place, there is nobody else to do it but this House. So what have we to fear? Only ourselves, in that instance. We will be taking over the decisions on environmental legislation from the European Union. I know that some people were very slavish in their attitude towards the European Union and their desire to stay in it. Have a little confidence in your own ability to make your own laws, to do what is right for your own people —

Photo of Edwin Poots Edwin Poots DUP

— and to respond to people and to the community's needs. I will give way in a moment. The people in this Chamber know better the needs of the people in Northern Ireland than a commissioner in Europe, who could be from any one of 27 countries.

Photo of Clare Bailey Clare Bailey Green

Does the Minister agree that, although the House has always had the power to make changes, we have consistently seen environmental degradation and stubborn levels of pollution in Northern Ireland? While we can look to the EU, we have always had the ability; we have just chosen not to act on it.

Photo of Edwin Poots Edwin Poots DUP

I have to counter that and say that we have not seen environmental degradation; we have seen environmental improvement. The Member said that our waterways and air quality are not good enough. I agree with her, and there is more to be done and more that we will do to improve water quality and air quality. We do not need the European Union to tell us how to do it. We know how to do it ourselves and we need to tackle it. The damage that is being done to many of our waterways is disgraceful and horrible and it needs to stop. We will work out how we can address that better than is currently the case but we certainly do not have to go backwards.

I do not have a particular issue with an independent environmental agency. However, I will say that the environmental NGOs in England, Scotland and Wales do not hold up the work of the agencies there as something that is so much better than the work that the NIEA does. Everybody can repeat it, but it is not some great panacea that is going to deliver brilliance that we currently do not have. We have an agency that is left to get on with its job and, in my opinion, does quite a good job. If the House wishes to create an independent environmental agency, that is absolutely fine, but it is not the panacea that some people make it out to be. It may be good but it may not be any better than what we currently have. That assessment needs to be carried out.

When it comes to casting unfounded aspersions on the OEP, as some people did, we do not have any evidence whatsoever that it will not be independent or robust. The body has not even been created yet and, already, people are casting aspersions that it will not be this, that or the other. That is a ridiculous position to adopt.

I have absolutely no doubt that further change is coming in how we deal with the environment and ensure that it is well kept. John Blair raised the issue of habitat and species loss and, again, that is something that, I hope, we are slowly reversing.

I launched the environmental challenge fund just the other day and to do that, I went up to Slievenacloy, which benefited from the challenge fund last year. There is a wide range of species of grasses and flowers there that we are allowing to be promoted. Projects like that are making a real difference.

I have previously been to Glenwherry to see a project to bring back many of the breeds of ground-nesting birds that we had practically lost. I have to be blunt: one of the ways that that was achieved was by the removal of foxes. Some people might not like that, but a ground-nesting bird is easy prey for a fox. Therefore, if you want to save the ground-nesting birds and the indigenous species that have been in this country for millennia, those are the actions that you have to take. I agree with Mr Blair; we need to improve those areas, bring back species and create habitats that are suitable in order for them to thrive. We need to look at this as a holding position and then engage in how we can carry out further improvement.

The border was raised as an issue. It is not an issue. All the regulations that we have come from the European Union and we are carrying out the same regulations. The border is not an issue because we do not have different positions at this point. As we go forward, I suspect that we will face challenges, but the challenges may well be with people on the other side of the border keeping up with us. That may be the challenge. One will just have to wait and see. Opportunities exist there with the environmental improvement plan that we will facilitate and bring in, and that is something that we really need to do.

In closing, nothing in the Bill reduces protections. There is not one smidgen of evidence to support that assertion. Therefore, those who are voting against the Bill are doing so based on a straw man. I am thankful that most of the House support the Bill. It is absolutely necessary if we are for real about protecting our environment.

Question put and agreed to. Resolved:

That this Assembly endorses the principle of the extension to Northern Ireland of the provisions of the Environment Bill, as introduced on 30 January 2020, dealing with: environmental governance in Northern Ireland in clauses 45 and 46 and schedules 2 and 3; waste and resource efficiency in clauses 47-53, 56, 58, 62, 64 and 68 and schedules 4-9; water quality in clauses 81 and 83; and amendment of REACH legislation in clause 125 and schedule 19.

Photo of Roy Beggs Roy Beggs UUP

I ask Members to take their ease for a few moments.

(The Temporary Speaker [Mr Wells] in the Chair)