Official Report: Minutes of Evidence

The Deputy Chairperson (Mr McAleer): I welcome the following officials to brief the Committee on the proposed changes, and there will then be questions from members. We have Mr Colin Armstrong, deputy director of marine and fisheries division, and Mark Preston, head of natural heritage 2 branch, natural environment policy division. I invite you to brief the Committee, after which members may have questions.

Mr Colin Armstrong (Department of Agriculture, Environment and Rural Affairs): Thank you very much, Deputy Chair. Good afternoon, and thanks for the opportunity to provide you with an update. By way of introduction, I am Colin Armstrong, deputy director of marine and fisheries division, and I am joined by Mark Preston from natural environment policy division. We very much work together on the nature conservation work area.

First of all, I will outline the regulations. We are proposing an amendment to the Conservation (Natural Habitats, etc.) Regulations (Northern Ireland) 1995. Those regulations transpose what were the habitats and birds directives, which is the legislative framework that was originally put in place to protect habitats in the EU. Following EU exit, operability changes were made to those regulations to set them in the context of operating outside the EU, and those changes included what the former role of the European Commission would have been in the processes. These laws are now what we refer to as assimilated law, and Mark will outline in more detail the significance of that and the processes that we now need to go through for that. Principally, the purpose of today is to highlight how the changes that we are outlining clarify the responsibilities of the Secretary of State (SOS) and the responsibilities of the Department, because a little bit of confusion has come to light around those roles when it comes to designation, monitoring and management of special areas of conservation (SACs) and special protection areas (SPAs).

I will set a little bit of context. The conservation regulations apply to Northern Ireland, which, for the purposes of these regulations, includes the territorial waters of the United Kingdom that are adjacent to Northern Ireland. That is what we also call the Northern Ireland inshore region. While nature conservation is a devolved matter, the foreshore, the seabed, the subsoil and their natural resources are reserved matters and, hence, when we seek to do anything that touches on those things, we must get the agreement of the Secretary of State to do so. In practice, when the regulations first came in, it was very clear that DAERA was responsible for identifying special areas of conservation and special protection areas and undertaking all the public consultation. We will have gone to the relevant Committees at the time and outlined all of that, and then we will have got the Secretary of State's agreement to go to public consultation and again at the stage of formal consultation. That will have been the process. However, in the latest designation process for a special protection area in Carlingford and on the east coast, an issue emerged when we went to the Secretary of State. It was pointed out that, actually, that process and practice does not fully reflect how it is drafted in the existing regulations.

The drafting that is in the regulations at the moment is quite a blunt explanation. It simply says that, for a European site, or when it comes to a European marine site, substitute "the Department" with "the Secretary of State". That does not really reflect what happens in practice, and, as a result, we discussed that with Department for Environment, Food and Rural Affairs (DEFRA) officials, who are the officials responsible for this. They said that we should consider taking forward this amendment to provide the clarification, and they agreed, in principle, that it is not impacting on any existing Secretary of State responsibility and that we are able to do so. This is very much just a clarification issue.

More helpfully, the latest legislation relating to this that came into effect was the Marine Act (Northern Ireland) 2013. When that Marine Bill was coming through, it very clearly set out a process of designation whereby the Department does the work and goes to consultation and then gets Secretary of State agreement. We are proposing in these amendments that we simply take that exact same approach and apply that to special areas of conservation and special protection areas. I will let Mark outline more about the process and retained EU law, etc.

Mr Mark Preston (Department of Agriculture, Environment and Rural Affairs): Thanks, Colin. Good afternoon, Chair and Committee members. The 1995 regulations were originally made under section 2(2) of the European Communities Act (ECA) 1972. That legislation was revoked on EU exit, and the proposed amendments will be taken forward under section 14 of the Retained EU Law (Revocation and Reform) Act 2023. The amending regulations will be subject to negative resolution.

Whilst the current focus has been on marine SPA designation, a review of the regulations was undertaken, and we identified a minor drafting error during EU exit fixes that removed the role of the SOS in marine SACs. That is another thing that will need to be fixed during the process. The fix will align the SPA designation with the SAC and with marine conservation zones.

The review of the regulations also identified other minor amendments that are required to clarify that DAERA is responsible for managing and monitoring European marine sites in the NI inshore region, rather than the Secretary of State taking that role. We conducted equality and rural needs impact assessments. As the proposed regulations are technical amendments, no impact was identified. Once the regulations are drafted and scrutinised, we will have to seek the agreement of the Secretary of State for Environment, Food and Rural Affairs to lay them. Thank you.

The Deputy Chairperson (Mr McAleer): I will pass to John, who has indicated that he wants to ask a question.

Mr Blair: I am clear that this is a technical adjustment. Thank you, both, for the presentation. The best way to ask this question without being mischievous — I am not sure what involvement or interest the various Secretaries of State over the years have had in our marine environment in Northern Ireland, but I could have a guess — is this: is there any lessening or strengthening of the role of any of the parties here, whether it is the Secretary of State or departmental officials? I hope that I will hear that the departmental officials have an increased role rather than an unclear role.

Mr Armstrong: This change will not change substantially anything that the Department does insofar as it relates to the inshore region. The Department has been responsible for gathering all the evidence, doing the science and developing all the proposals. As you indicated, DEFRA has had no involvement in that. To date, the practice has always been that it is developed here: we come to the likes of the Committee; we go to stakeholders; and, once that is finished, the Secretary of State gives agreement. It very much gets scrutinised and worked through here. All that we are doing is correcting the legislation to clarify that. There is no actual change in practice.

Mr Blair: That will stay the same, except that the Secretary of State was not mentioned somewhere but is now. Is that the gist of it?

Mr Armstrong: The Secretary of State will be mentioned only at the very end. It is usefully set out in the Marine Act (Northern Ireland) 2013, if you want to look at the wording in the section on marine conservation zones. The Department will take it through all stages of the designation process. Then, at the end, it will say something like, "The Department can designate only with agreement of the Secretary of State". That means that scrutiny can happen here.

Mr Blair: Thank you.

The Deputy Chairperson (Mr McAleer): In your briefing, you said that DAERA has responsibility for managing and monitoring European marine sites in the NI inshore region. You will appreciate that, because we are one epidemiological island, the NI inshore areas will interface with those in the South of Ireland. What management plan is in place to make sure that the management of NI inshore areas is aligned with that of inshore areas around the entire island?

Mr Armstrong: Special areas of conservation and special protection areas apply across the EU. In Ireland — we are talking about a proposal here for Carlingford lough — there are special protection areas that have been designated, for example, on the Carlingford shoreline. We can designate within parts of Carlingford lough, and the National Parks and Wildlife Service can do the same. The framework for the protection of European habitats and species is the same, North and South, and this will make no change to that.

The Deputy Chairperson (Mr McAleer): That reflects the island being an epidemiological unit.

My next question may well be for the legal department, but you might be able to offer some information. Can you explain how it is decided whether a rule is laid by negative or affirmative resolution? Who makes that decision?

Mr M Preston: It is set out in the Retained EU Law (Revocation and Reform) Act 2023. When we use section 14 to do this, it will be subject to negative resolution.

The Deputy Chairperson (Mr McAleer): Finally, your briefing paper states:

When did that meeting take place? When did you realise that that was the case?

Mr Armstrong: We have had on and off meetings with DEFRA over the last couple of years on this. I do not have the exact date of that meeting with me. Do you have it?

Mr Preston: No.

Mr Armstrong: The meeting will have been in the last year or 18 months. I can come back to you with the exact dates of those meetings. We have been engaging with DEFRA over the last couple of years, and that problem coming to light has resulted in a bit of a delay in classifying those sites.

The Deputy Chairperson (Mr McAleer): No other members have indicated that they wish to speak. Thank you, Colin and Mark for making your way up here this afternoon.

Mr Armstrong: Thank you very much.