Secondary legislation related to Brexit has come under fire. Photograph: Alphotographic/Getty Images Secondary legislation related to Brexit has come under fire. Photograph: Alphotographic/Getty Images

Do DEFRA’s post-Brexit compliance regulations represent a ‘power grab’?

A “pile of vomit” is a phrase rarely used in parliament, but Labour MP Luke Pollard used exactly that to describe legislation that passed the Commons last week.

It was a comment on the statutory instrument (SI) before him, The Environment (Legislative Functions from Directives) (EU Exit) Regulations 2019 – a “mess of inconsistency”, in the words of Baroness Young. The legislation represents “a power grab by ministers, potentially enabling them to reduce current EU environmental protections by amending their own duties, standards and monitoring requirements, in particular for toxic emissions,” Pollard said in July’s Delegated Legislation Committee meeting.

The law’s self-described function is to “provide for legislative functions of the European Commission under various environmental directives to be exercisable instead by a public authority in the United Kingdom” after Brexit. A total of 17 directives are listed, the Ambient Air Quality Directive, Industrial Emissions Directive (IED) and Drinking Water Directive among them.

Peers, environmentalists, academics and lawyers alike have expressed concerns about the scope of the law and how it might be exercised. Nevertheless, the regulations were passed into law by the Commons last Tuesday, the 280 to 204 vote being the first win for prime minister Boris Johnson.

One source ENDS spoke to said regulations made under it would be subject to parliament’s weak negative scrutiny procedure. In other words, they would have to be actively voted down to stop them entering force, rather than deliberated upon and approved.

The timing of the vote has also been criticised. It came moments before the Environment Bill was introduced, on which the environmental policy community’s resources are now focused. It “looks suspicious”, said Miles King, CEO of environmental group People Need Nature, adding that its powers could be used to undermine the ‘level playing field’ set out in prime minister Boris Johnson’s amended EU withdrawal deal.

Even without the bill, there have been so many Brexit-related SIs from DEFRA that “that there hasn’t been the capacity within any organisation to scrutinise them properly. Most of them are fairly benign and do just correct deficiencies in EU law and plug gaps, such as where the commission is the decision-making body. But there has always been the capacity for ministers to be given much more sweeping powers,” observed Angus Evers, co-chair of the UK Environmental Law Association’s Brexit Taskforce and head of Shoosmiths’ environmental practice.

Emissions monitoring

Taking the IED as an example, the regulations allow modifications of provisions concerning emissions monitoring and how compliance with limit values is gauged. Similarly, rules specific to solvent activities and waste incineration could also be changed – among them how the toxicity of different dioxins should be compared.

So, while headline objectives would presumably remain as they stand, how they are considered to be attained could be altered. But there is a risk from not exercising such powers, Evers said: failing to amend legislation to keep pace with Europe would mean “we just get left behind”.

The law also permits the IED’s definitions of start-up and shutdown periods to be amended. In theory, this could allow emissions that would breach permit conditions now to become lawful. However, the regulations specify that amendments may be made only where “scientific and technical progress” make them appropriate. The term is not defined.

A similar proviso applies to amending monitoring requirements for the Medium Combustion Plant Directive and some, but far from all, of the other EU legislation cited. Evers observed that the “pretty broad” power to modifying parts of the Urban Waste Water Treatment Directive “doesn’t seem to have any safeguards at all [which is] a bit of a gift to the water companies.”

In the Lords’ summer debate on the SI, Baroness Young said she had the impression that the law had been “glued together at the last minute”, though DEFRA says that it accurately reflects powers that the European Commission has now.

During the committee debate, former environment minister Thérèse Coffey defended the regulations as being a “clearly defined” and “sensible approach that will ensure that we continue to have appropriate legislation that helps us protect the environment.” She noted that it should ensure that a common approach to environmental regulation is undertaken across the UK, allowing Whitehall to legislate on behalf of the devolved administrations, with their consent. This will provide “more certainty for industry and stakeholders,” she said.

She took exception to Pollard’s lurid description of the law. “Our officials and lawyers have worked very hard on this legislation; it is not vomit. It is actually good, normal, sensible legislation being brought to this house for scrutiny.” But it is the potential lack of scrutiny for further regulations made under the statutory instrument’s powers that make it particularly controversial.

The Green Alliance, in a paper submitted on behalf of the Greener UK coalition and Wildlife & Countryside Link, suggested that “at the very least… these amendments should be subject to more rigorous scrutiny including approval of both houses before the SI is made”. DEFRA responded that the Office for Environmental Protection would look into them.

The paper particularly objected to powers to amend elements of the Ambient Air Quality Directive. Though widely broken, the government is obliged to meet it – a duty that it can now amend for itself.

Annex III sets out how air quality should be assessed, such as where sampling points should be located and that monitoring should be undertaken in the most polluted areas. Annex XV presents a framework for air quality plans, requiring measures to be described, a timetable set out and their impact estimated.

“It is not easy to foresee how such requirements would need to be updated in light of advances in scientific evidence or understanding. They do not set out quantitative or technical specifications,” the paper stated. The directive’s purpose and effectiveness could be undermined, it added.

During the Lords debate, Baroness Young - once the chief executive of the Environment Agency and chair of English Nature - recalled how Whitehall once announced that air quality breaches in London had been cut by a third. But this was “before we quietly pointed out to them behind the scenes that that was because the budget had been cut and there were one-third fewer monitoring stations, especially in areas of high pollution,” she said.

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