Environment Bill: Legislative Consent Motion

Part of Executive Committee Business – in the Northern Ireland Assembly at 6:45 pm on 30th June 2020.

Alert me about debates like this

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.