Environment Bill: Legislative Consent Motion

Part of Executive Committee Business – in the Northern Ireland Assembly at 7:00 pm on 30th June 2020.

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Photo of Matthew O'Toole Matthew O'Toole Social Democratic and Labour Party 7:00 pm, 30th June 2020

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.