Environmental Noise (England) (Amendment) Regulations 2009

My Lords, we do not have a great deal to go on yet, except that none of the devolved Assemblies has pursued the ambulatory route thus far. These are the first regulations to be applied under these terms. As the committee rightly identified, and my noble friend Lord Rosser exemplified in his speech, one of the reasons that the committee was so concerned about this issue was that it was the first to come to its attention against a background where quite clearly the concept of the power in relation to European directives can and does apply across a range of government departments. We are dealing with the first of its type, which is why I am profuse in my congratulations to the committee and to my noble friend on their sharp analysis of this position. The real nub of this debate is the ambulatory reference. In his opening speech, my noble friend Lord Rosser identified the key issues, which the noble Lord, Lord Taylor, embellished. I will seek to address myself in due course to the details which he raised, but I want to get on to the three main points of the debate and the committee’s concern, which were exemplified by my noble friend. Towards his conclusion, he directed three specific questions. He asked about the breadth and significance of the ambulatory reference and whether it was within an agreed Whitehall position. As the Minister in the other place made clear in writing to the chairman of the Merits Committee, we set out in detail the potential consequences of the ambulatory reference in the event that the directive is amended. The unintended results arising from the reference were considered to be minimal. We did and do think that our approach is no departure from the agreed Whitehall position. I assure my noble friend and the House that when Defra was acting in these terms, it sought to act within the framework of the agreed Whitehall position across government departments with regard to the use of the ambulatory concept. My noble friend also asked me to indicate the Government’s stance on ambulatory references of the breadth and significance of the one we are discussing in the light of the concerns, which he rightly reflected, from the Merits Committee. We do not think that there is any change from the agreed position. Care must be taken when using the power. Departments should note that ambulatory references can apply to only certain sections or parts of a community instrument in order to minimise the risk of unintended results. This will operate within a narrow framework, within which Defra and my department are working, which is common across Whitehall. The third question put by my noble friend was whether we are likely to see 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 that may be significant and not necessarily foreseen. I am in a difficult position on this. I have indicated that the department has taken care to see that it is in line with the Whitehall position, but I would have difficulty trying to speak on behalf of the whole of Whitehall. I can speak on behalf of the department I serve directly, but it is more difficult to do that for the practices of other departments. However, it is not unreasonable to expect that all government departments will adhere to the agreed Whitehall position as I have described it whenever they consider issues of ambulatory references. So far as Defra is concerned, each statutory instrument is to be considered on a case-by-case basis. As the noble Lord, Lord Taylor, indicated, there are real resource implications in keeping transposing legislation up to date with changes in European law, and this is one of the reasons why the power to make ambulatory references was introduced in the first place. I therefore have difficulty giving assurances that limit other departments from being able to use the power appropriately and efficiently on a case-by-case basis, but that is exactly the position which the department is establishing. I want to emphasise that, first, the instrument relates solely to England; secondly, we do not have illustrations of any kind of ambulatory use by the devolved Governments; and thirdly, I cannot bring any other department to bear on this issue at present because we are the first in the field. It is not surprising that Defra should be first, not because the department is unnecessarily seeking the limelight but rather that it is in the nature of the activities it covers that, inevitably, European directives will play an important part in them. I want to respond to some of the specific questions put to me by the noble Lord, Lord Taylor. He asked what amendments were made to the 2009 regulations and how compliance with the amendments will be guaranteed. Failure to comply with any obligations is a breach of statutory duty. The department is bound to comply with these requirements, and that is why we have to act with care in relation to the positions. The legislation can be amended from time to time, but such legislation often contains cross-references to other statutes. When transposing European legislation into UK law, it is common to refer to a European directive in our domestic legislation. An ambulatory reference means that the reference is to the directive as it may be amended from time to time. I assure the House that we recognise the significance of the point that use of the ambulatory approach would not be appropriate where one was involved in issues of substantial policy changes to legislation; it is merely and largely a means by which technical changes made in Europe that we have to take account of in our legislation can be effected. We would not always want to introduce secondary legislation to do this, but naturally we are concerned to communicate such changes effectively. The noble Lord, Lord Taylor, also asked about progress on maps and their extent. The directive requires the next round of mapping to include agglomerations with over 100,000 in the population and sets a threshold for major changes such as those required for railways, for example. The requirement already appears in the existing regulations. The noble Lord, Lord Greaves, asked when the amending regulations will be published. We will do this as soon as possible, and certainly it is expected that they will be available by the end of the year. The noble Lord, Lord Taylor, also asked whether the amendments could cover substantive amendments that might have resource implications. Those implications are set out in five-yearly time limits in the directive. In other words, the allocation of resources is clearly identified and any amendments to the directive with resource implications would of course be the subject of very considerable negotiation. British officials would be involved in such negotiations and Ministers would take an interest. If the outcome were significant, then in fact the whole reference to the ambulatory approach would not be appropriate because we would be talking about substantive issues. I concede to all noble Lords who have emphasised the fact that this exercise of power to keep up to date with European directives must inevitably be on a very limited scale; it cannot involve significant changes to resource allocations—which, as noble Lords have emphasised, are the responsibility of Parliament—and the obligation on Ministers to inform Parliament when they are involved in activities of that kind. I hope it will be recognised that the department has not acted in an improper way with regard to this exercise. It is the first in the field and is identifying an approach to European legislation that merits a degree of close scrutiny, which we have identified this evening. I emphasise that we are dealing with minor matters derivative from European legislation. Anything that developed from the directive which had significant resource applications would not come within the framework of this approach. I hope noble Lords and, in particular, my noble friend Lord Rosser, will feel reassured by the arguments I have put. I hope that he, in feeling reassured and having highlighted the importance of the issue, is able to withdraw his Motion.