Official Report: Minutes of Evidence

The Chairperson (Mr McAleer): I welcome, via StarLeaf, John Mills, the director of the environmental policy division in the Department, and Karl Beattie from the Environment Bill team. I invite John and Karl to make their opening remarks, and we will then have Committee members' questions.

Mr John Mills (Department of Agriculture, Environment and Rural Affairs): Good morning. Thank you, Chair.

The Chairperson (Mr McAleer): Good morning. Thank you, John.

Mr Mills: I hope that you can hear me.

The Chairperson (Mr McAleer): Yes. Loud and clear.

Mr Mills: We will try to address any further concerns that the Committee has with the Environment Bill. Apologies if we have to come back to you in writing on some points.

on the Bill through the difficult current circumstances. If you are content, Chair, I will give a brief update on the Bill's progress. Since we last briefed the Committee, on 27 February, we have been providing updates in the interim through the weekly briefing. It remains our

as soon we can, and before the Bill leaves the Commons in Westminster.

Although it is technically possible to grant consent at a later stage, the UK Government are keen to have confirmation of our intentions on the Bill. Committee Stage at Westminster commenced on 10 March and was suspended on 19 March because of the COVID-19 crisis, by which time about 100 amendments had been tabled. During the suspension, most of the DEFRA staff who had been working on the Bill were redeployed, mostly to the COVID-19 crisis response. Locally, we have not been able to fill vacancies on the Bill team, so there has been some impact.

It was widely expected that Committee Stage would not resume until after the summer recess. It is now considered likely that it may recommence later this month, possibly even concluding before the summer recess on 21 July.

The legislative consent motion (LCM) was laid in the Assembly on 19 March. In the normal run of things, the LCM would have been tabled in early May. However, in the current circumstances, we have worked with the Committee Clerk and her staff to try to come up with a workable timetable. We are grateful for that engagement. The debate on the motion has now been provisionally scheduled for [Inaudible.]

The Chairperson (Mr McAleer): We are losing you. [Inaudible.]

The Chairperson (Mr McAleer): We are losing you, John.

Mr Mills: Finally, we are grateful to the Committee for sight of the draft paper, as you mentioned, Chair, for the purposes of fact-checking. We will get back to that as soon as we are able to, if we have not already done so.

That is me finished. Thank you.

The Chairperson (Mr McAleer): Thank you, John.

Mr McGuigan: John, thank you. We have raised this issue before. The Committee has specifically expressed a concern, as have environmental groups and others, about the failure to include a non-regression clause in the Bill. I am looking at my notes here, and the Department argues that there is no potential for regression on current protections. The Department uses the words "as far as possible", which leads me to be concerned that there is potential for regression. As I said, it is the view of the Committee and environmental groups that there should be no regression from current laws. In fact, we would like stronger protections, which is why, in New Decade, New Approach, we call for an independent environmental protection agency for the North, as well as for climate change protocols and stuff like that. Will you expand on the potential in the Bill for regression from current environmental protections in the North?

Mr Mills: I will make a few high-level points. Karl, you may then wish to contribute some additional points. Nothing in the Bill is a threat to current environmental protections. What the Bill does, in fact, is to restate some of those protections, such as environmental governance and oversight principles, in domestic law. The Westminster withdrawal Act [Inaudible.]

The Committee Clerk: We should perhaps ask the other witness to come in on that point.

The Chairperson (Mr McAleer): Karl, can you pick up on anything there? We have lost John.

Mr Karl Beattie (Department of Agriculture, Environment and Rural Affairs): Sorry, but I have lost him as well. I will fill in.

What is important is that we draw a distinction between environmental governance arrangements and environmental protection. Certainly, governance arrangements will change as a result of the legislation. As John says, however, there is nothing in the Bill that threatens existing environmental protection measures. The measures that we have now will still be there after the legislation is in place.

The UK Government decided not to include a non-regression clause, as is their right. I am pretty sure that they have no intention of changing that position. I believe that colleagues in Scotland and Wales are considering introducing non-regression clauses in their devolved legislation, and it would be open to the Assembly to do the same in the future.

The strong sense that we get from DEFRA is that, although the UK Government are not prepared to put a non-regression clause in the Bill, they do not have any intention of reducing environmental protections, and neither do we.

The Chairperson (Mr McAleer): OK. I will ask John Blair to come in.

Mr Blair: Thank you, Chair. I thank John and Karl for what they have given us so far. Philip has addressed head-on an issue that I have on a short list here, so I will refer to my other issues.

I totally understand that the Bill has been thrust on us from another place, that it has to be dealt with and that it will follow its timetable there, whatever we think. For that reason, why has the Department not made more reference to the governance arrangements? Whatever is happening at Westminster, there is a Northern Ireland commitment to having an independent environmental protection agency for this jurisdiction. Is it not therefore reasonable to try to match our commitment on that in the medium term to what is in the Bill in the immediate term? Preparations for that, as well as a timetable for such preparations, should perhaps have been flagged in the report and briefing paper. I hope that John and Karl understand my reasons for saying that. Fundamental to the governance of such matters going forward will be having that independent environmental protection agency and knowing how it sits with the provisions in the Bill.

Secondly, on the issue of pollution, it is all very well for the Bill to refer to making the polluter pay and all those sentiments, but, in reality, there is no obligation on polluters to rectify whatever went wrong. Should we not be fleshing out how we will do that?

The Chairperson (Mr McAleer): Thank you. I invite Karl or John to respond.

Mr Mills: I seemed to lose my connection, Chair, but hopefully I am back again now.

On the independent agency, what we were ultimately trying to do with the Bill was to make sure that there was not a governance gap when the UK left the EU. That meant preserving, in governance terms, the environmental principles that were enshrined in the Treaty on the Functioning of the European Union (TFEU) to give the European Commission and the European Court of Justice (ECJ) independent environmental oversight.

As the Bill was being constructed, we were not putting in provisions for an independent environment agency; that is, provisions to make the current Northern Ireland Environment Agency (NIEA) legally independent of DAERA. That is why those did not go in. The 'New Decade, New Approach' document gives a commitment to look at establishing plans for a future environment agency, and the Minister's [Inaudible.]

Bill is not something we would be able to get in. An assessment of costs and an economic appraisal would be required before the Minister would want to undertake establishing it.

Do you have anything to add on that point, Karl?

Mr Beattie: No. You have summed it up pretty well. The policy development, economic appraisal, and the legislation required for the development of an independent environmental protection agency for Northern Ireland is a significant undertaking. For that to happen, Northern Ireland primary legislation is required. The whole process, and the time that it would take to do, means that this is not something that can happen overnight. As John said, our aim with the provisions in the Bill is to plug the governance gaps that will arise at the end of the transition period.

Mr Mills: I wish to come back in on the pollution question. I understand the point, Mr Blair. We can have all the legislation that we like, but it will not necessarily, operationally, stop people polluting. What the Bill does is to preserve the European Union principle that the polluter pays. At that level, at least the principle is being preserved. To make the polluter pay, there are various provisions throughout legislation to take criminal action against people, to make people restore damage done and to have the Department, or other authorities, fix damage, for which the polluter can then be charged. There are far too many provisions to go into here.

Other provisions in the Bill give us new or revised powers on producer responsibility. Those powers will go much further, by making the producers of packaging, which could become a problem, bear the entire cost of dealing with it. Through those other provisions, the Bill therefore strengthens powers on producer responsibility.

Ms Bailey: Thank you for your answers so far. I completely understand what you are saying: that this is an enabling Bill and that there are environmental governance versus environmental protection issues. I put on record that, as the Bill does not include a non-regression clause, it feels to me like a threat to protection, particularly when you put it in line with the principles set out to guide the Bill going forward. Do you have any thoughts on how those principles will potentially work?

Do you think that they are solid enough to guarantee environmental protection or does something need to be tightened up to do that?

How does the Bill fit in with the protocol and the commitments in that? What preparations have you and the Department been involved in to make sure that we are compliant with environmental aspects of the protocol?

Will the Bill be cross-cutting in its application to all Departments? We know that the Department and the Minister are not working on, and do not have plans for, a stand-alone environment Bill in Northern Ireland, and the Minister has stated that he believes that existing environmental legislation and provisions provide a sound basis for environmental protections in Northern Ireland. However, you just have to marry that with our environmental track record, and a raft of questions has to be asked.

That is an overview of where my head is at with it. I would appreciate your thoughts on that and on where we stand in Northern Ireland. I will leave it there for now.

Mr Mills: I am tempted to say that that is more questions than I can cope with in one go.

The cross-cutting issue can be dealt with. The Bill is cross-cutting. Agreement to proceed to legislative consent was given by the Executive, and the provisions will affect other Departments. One of the functions of the Office for Environmental Protection (OEP) will be to ensure compliance by public authorities or to oversee such compliance with environmental laws. Therefore, it will extend to all Departments. Its scope will cover environmental laws, including the protection of the natural environment. If a Department is involved in doing any environmental things, it will be caught by the OEP.

I noted in the Committee's report that there were concerns about the possible impact on the Northern Ireland protocol. However, I am not sure what the specific concern is. At the end of the day, the Bill brings into domestic law things that we had for 40 years under the EU, such as environmental principles and independent environmental oversight. In that sense, it will make Northern Ireland more like the previous EU regime, and it is hard to see how it will have an impact on, or make more difficult, the implementation of the protocol.

There is a limited number of environmental regulations in annex 2 to the protocol, and, looking at it from an environmental perspective, some important areas, such as water, aspects of habitats, and a lot of the wider legislation, such as framework directives, will not be covered by the protocol. The protocol tends to be about very specific objectives in EU regulations, such as batteries or packaging. The emphasis there will be on the integrity of the single market from the EU's point of view. I do not see that there is necessarily a clash or an overlap between what is being done here.

Karl, did you pick up on the first question? I think that it was about the principles. Would you like to pick that up?

Mr Beattie: Yes. The question was whether we think that the provisions on principles will be strong enough for Northern Ireland. To some extent, that is probably up to us, because the provisions in the Bill are for us to prepare a policy statement on environmental principles, and the statement will explain how the environmental principles should be interpreted and proportionately applied. There is a fair bit of latitude there for us and for the Executive — it will certainly be a cross-cutting matter — to determine what should be in that statement.

We are working with the UK Government, and

colleagues, on a common approach to how that will be done, but it is still in the gift of the local devolved institutions to decide what is in the policy statement.

Ms Bailey: Will a planned statement come out on that, or is it something for further down the line? You are putting together this big Bill, and you are framing it within this set of principles, but those principles are open to interpretation. We have just seen, in a recent scandal, how interpretation can lead to very different actions from some people. That is where my real concern is.

Mr Beattie: At this stage, there is a joint purpose to work that has been done among the various Administrations, because everyone will be doing this. The detail simply has not been worked out in any of the jurisdictions yet. Resources are a little bit thin on the ground, obviously. COVID-19 has slowed things down; there is no question about that. In the autumn, work will certainly ramp up on that.

Ms Bailey: OK. Thank you.

The Chairperson (Mr McAleer): Before I move on to Philip, I want to ask about clauses 47 and 48 on producer responsibility. The issue of waste has become pronounced during the COVID-19 pandemic, particularly as communities go out to reclaim ownership of the road and engage in litter-picking campaigns and many other issues. Of course, there have been serious issues connected with fly-tipping during the pandemic as well. Has the Department explored the possibility of designing levies or charges in a way that contributes to effective waste reduction?

Mr Mills: The provisions are about making sure that the cost of dealing with the products and materials that are caught by producer responsibility is paid by the producers. The producers of the packaging will ultimately help to fund the costs of collecting and dealing with packaging as it goes through its life cycle and ends up as litter. That will help to support councils in the costs that they incur in dealing with packaging. That very much supports the direction that you are going with, Chair.

There are also provisions for creating specific levies on single-use plastic items. The levy in the original proposal on carrier bags was about — off the top of my head — £4 million or £5 million. Some of that income is used to support environmental projects, including anti-litter campaigns.

The Chairperson (Mr McAleer): That is exactly what I was thinking about. A version of the carrier-bag levy, with the producers' responsibility going towards environmental projects and upkeep.

Mr McGuigan: Following on in that vein, Chair, I wonder, with regard to clauses 51 and 52, whether the Department has completed any research into the charges on single-use plastics and what a deposit-and-return scheme might look like in the North. What is the Department's view on the EU single-use plastics directive? Are those the principles, values and legislation that we should have in the North from this Bill?

Mr Mills: On clause 51, last year, there was a three-part consultation on producer responsibility, deposit-and-return schemes and a plastic tax, which is an excepted matter. There is a lot of detail in that. Work is still being progressed on all those matters through various working groups. There is a working group with other devolved Administrations and DEFRA on producer responsibility and deposit schemes. It is meeting regularly, with a view to consulting on a deposit-and-return scheme (DRS) and producer responsibility.

DRS is expected to be included — off the top of my head — in a second round of consultation in December. The issues that would arise under DRS are whether it would just be plastics or would other materials, such as drinks containers, be covered. There are also issues with the type of technology to be used for returning bottles: would vending machines, for instance, be used? Would you try to capture all drinks containers or just those that are picked up "on the go", as you have referred to, such as beverage cups. There are a lot of issues in there, but a consultation is planned.

On clause 52, there is the EU single-use plastics directive, or directives, to deal with single-use plastic items, which are to be transposed by the middle of next year. It is not something that the UK Government would be obliged to implement at the moment. There are aspects to that that would be relevant here, such as banning single-use plastic items such as cotton buds and so on.

Mr Irwin: Am I right in saying that the bottom line is that the Environment Bill is being put in place to ensure that environmental protection is in place when we leave the EU and that it is up to each Administration to add to that if it wishes? For instance, some members may have concerns about an independent environment agency and all the rest, but it is up to each Administration to do that. Is that right?

Mr Mills: That is correct.

Mr Irwin: That is what I understood.

The Chairperson (Mr McAleer): I would like to thank John and Karl for their attendance. Thank you very much.