Environmental Noise (England) (Amendment) Regulations 2009

My Lords, the issues that I want to raise are set out in the Merits of Statutory Instruments Committee’s 25th report to the House of 22 July this year. I am a member of that committee. In its report, the committee drew the Environmental Noise (England) (Amendment) Regulations 2009 to the special attention of the House on the grounds that this instrument is politically and legally important. It is important because it inserts an ambulatory reference into the 2006 environmental noise regulations by exercising a power contained in the European Communities Act 1972, as amended by the Legislative and Regulatory Reform Act 2006. The power to create ambulatory references was drawn to the special attention of the House by the Delegated Powers and Regulatory Reform Committee during the passage of the Legislative and Regulatory Reform Act 2006. While the power has been used by a number of departments in relation to technical amendments to EU legislation, the use of the power in the instrument that we are considering is the first time it has been used, of which the Merits Committee is aware, when it could allow for substantive changes to an EC directive to be directly applicable to this country. That is because Regulation 3(3) of the Environmental Noise (England) (Amendment) Regulations 2009 adds at the end of the definition of "Directive" the words, ""as amended from time to time"." The Explanatory Memorandum that accompanied this instrument referred to the effect of this by saying in paragraph 7.6: ""There is a possibility that there will be changes to the"," EC directive relating to the assessment and management of environmental noise, ""in the future, such as the updating of technical annexes or the possibility of other changes … This change will remove the need for further amendments to the Regulations if the Directive is changed"." A subsequent note from the Department for Environment, Food and Rural Affairs confirmed that it was conceivable that this ambulatory reference could cover substantive matters which might impact on costs for public authorities and the timescales over which actions are required to be taken. In other words, Defra confirmed that the scope of the ambulatory reference in this instrument would not be confined to amendments of a technical nature. Adding this ambulatory reference to the 2006 regulations means that some future changes, including significant ones, to the EC directive on environmental noise could be directly applicable to the UK, whereas previously an amending statutory instrument, subject to parliamentary procedure, has been needed to implement any changes to the directive. The Select Committee on the European Union has also raised a general issue of concern about ambulatory references and the fact that a statutory instrument may be used automatically to implement future amendments of an existing EC directive. The committee pointed out in a letter to the Minister for Europe that the absence of further domestic legislation to implement an amending directive meant that there would be nothing in domestic law for the Merits Committee of the House to scrutinise. As a result, this would render the initial scrutiny of EC instruments undertaken by the EU committee even more important, as it would be the only opportunity for parliamentary scrutiny in these cases. Following consideration of the Environmental Noise (England) (Amendment) Regulations 2009 by the Merits Committee, a letter was sent to the Minister of State at Defra, Jim Fitzpatrick MP, by the noble Baroness, Lady Maddock, setting out the concerns of the committee about the breadth and significance of the ambulatory reference in this instance. In his reply of 8 October, and included in the Merits Committee’s 27th report published on 22 October 2009, the Minister of State set out the reasons why the department had not limited the ambulatory reference to purely technical changes or, alternatively, to certain defined areas of the directive. However, the Minister concluded his response by saying that, having considered the Merits Committee’s concerns as set out in its report, in this case the department had decided that it would be preferable to limit the ambit of the ambulatory reference to the technical aspects in the annexes to the directive, and that it intended to amend the regulations to that effect. I want to raise some points in the light of that response from the Minister of State at Defra. In his response, he pointed out that the scope of paragraph 1A of Schedule 2 to the European Communities Act 1972 was not limited to technical amendments but could apply to amendments when the department considered it necessary or expedient. I am of course aware that there is an agreed Whitehall position on ambulatory references since it is set out in the Merits Committee’s 25th report, published on 22 July 2009. That position statement says that to minimise the risk of any unintended results, departments are asked to note that the ambulatory reference can apply only to certain sections or parts of a Community instrument such as an annexe, which does not appear to have been the case in this instance. It also says that care should be taken before the power to make ambulatory references is used because of the effect that an ambulatory reference may have, as it will catch all future amendments to the Community instruments and not just technical ones. Such future amendments, says the agreed Whitehall position statement, may be significant and may not necessarily be foreseen at the time of making the ambulatory reference. I do not know whether the welcome change in Defra’s stance reflects a doubt on whether this part of the agreed Whitehall position was initially given as much weight as it might have been. It would be very helpful if my noble friend could indicate whether the initial Defra position on the breadth and significance of the ambulatory reference in the Environmental Noise (England) (Amendment) Regulations 2009 was in line with the agreed Whitehall position as set out in Appendix 1 of the 25th report of the Merits Committee. It would also be helpful if my noble friend could tell us the Government’s stance on ambulatory references of the breadth and significance of the one that we are discussing in the light of the concerns expressed by the Merits Committee and the welcome change of view by the Minister of State at Defra. Finally, can my noble friend give some assurances that since effective parliamentary scrutiny is more important than administrative convenience, we will not see from any department any further ambulatory references that in the words of the current agreed Whitehall position will catch not just technical amendments but all future amendments to the Community instrument in question, which may be significant and may not necessarily be foreseen at the time of making the ambulatory reference?