Animal Welfare (Licensing of Activities Involving Animals) (England) (Amendment) Regulations 2019

Lord Gardiner of Kimble Excerpts

Tuesday 25th June 2019 Lords Chamber

Moved by

[Lord Gardiner of Kimble]

That the draft Regulations laid before the House on 13 May be approved.

Relevant document: 52nd Report from the Secondary Legislation Scrutiny Committee

[The Parliamentary Under-Secretary of State, Department for Environment, Food and Rural Affairs (Lord Gardiner of Kimble) (Con)]

My Lords, this statutory instrument establishes a ban on the commercial third-party sale of puppies and kittens under six months of age. After six months, the puppy or kitten is then legally classified as a dog or cat.

Under animal activity licensing regulations brought in last year, it is not permitted for anyone to sell a puppy or kitten under the age of eight weeks. During this time, the animal should be in the care of its mother. After eight weeks, it is safe for them to be brought to a new and caring home. However, commercial third-party sales often take puppies and kittens when they are far too young and raise them in inappropriate environments, which evidence shows is damaging to the animal’s welfare. Third-party sellers drive unscrupulous breeding.

This legislation is the next crucial step in eradicating the abuses of unscrupulous breeding, puppy farming and illegal smuggling. This is a continuing part of the Government’s agenda to increase animal welfare in this country. This ban will give puppies and kittens a better possible start in life.

This issue has been brought into higher profile by committed campaigners and has overwhelming public support. It is popularly known as Lucy’s law as a result of the exceptional effort from the Lucy’s law campaign group, to whom I express appreciation. Lucy was a Cavalier King Charles spaniel who died in 2016 after suffering terrible conditions on a puppy farm in Wales. Her plight inspired the Lucy’s law campaign. Welfare organisations big and small, and members of the public, have supported Lucy’s law. This legislation follows a call for evidence and a public consultation which received over 6,500 responses, of which 96% were supportive.

This ban builds on the new licensing regulations which came into force in October 2018, introducing a range of welfare improvements for dog breeding and pet sales. Defra is also updating the statutory guidance for the activity of selling animals as pets to take account of this ban on third-party sales. The changes to the guidance are intended to assist local authority inspectors and licence holders by outlining how they can determine whether a licence holder bred the puppies themselves and clarifying that non-commercial rehoming does not require a licence. The guidance will outline how to distinguish between legitimate rescue and rehoming operations and those that are a front for unscrupulous breeding. Local authorities will also be required to notify existing licence holders of the change so that they can prepare appropriately. The draft guidance has been shared with the sector and will be finalised before the ban comes into force in April 2020.

This statutory instrument implements the third-party sales ban by making an amendment to the parent regulations, the Animal Welfare (Licensing of Activities Involving Animals) (England) Regulations 2018. The commercial sale of pets is already a licensable activity, and the amendment means that licensed pet sellers, including pet shops and dealers, will no longer be able to sell puppies or kittens under the age of six months unless they themselves have bred the animals. The ban will enter into force on 6 April 2020. The additional time before the ban coming into force will allow the sector to prepare. We believe that, if the ban is rushed, it may encourage the abandonment of puppies and their mothers or other unscrupulous activity.

This statutory instrument applies to England only, because the parent regulations apply in England only. Animal welfare is a fully devolved issue, and the respective parts of the United Kingdom have slightly different approaches to the licensing of pet sellers and other animal activities. I understand that, in Wales, a three-month consultation has recently concluded on banning third-party sales. The Welsh Government are now considering the responses. In Northern Ireland, there is support for a similar ban to be introduced, and officials in DAERA are following developments in England closely. Scotland has committed to reform the licensing of sanctuaries, breeders and pet shops and is considering a ban on third-party sales.

Every year, hundreds of thousands of puppies and kittens are purchased or adopted. Unsuspecting families can often be tricked during this trade by unscrupulous dealers who conduct high-volume, low-welfare operations such as puppy farms and sell via commercial sellers.

--- Later in debate ---

Having said that, we of course welcome these regulations and the Minister’s commitment to remain ever vigilant on these issues for the future. As noble Lords have all said, this issue will not be fully solved by the regulations; they are just one step in the process.

[Lord Gardiner of Kimble]

My Lords, we have had an important and absorbing debate on these matters. I think there is a shared recognition across your Lordships’ House that these are valuable and important regulations. They are a crucial step in furthering the protection of puppies and kittens, but I would be the first to say, as I agree with noble Lords, that they must not be seen in isolation. They are part of a continuum and a continuing process.

I was very struck by the remarks of the noble Lord, Lord Clark of Windermere. They were a reminder for all of us who have had dogs and cats in our lives of what we owe them and the pleasure and companionship they provide to us. I have used every opportunity available to me to say that animals should not be fashion statements. They need loving, caring homes. One of the important issues arising from the parent regulations was raised by the noble Lord, Lord Trees, in a debate some days ago. We should not breed animals from those that have disabilities or disadvantages that mean they cannot have fulfilling lives. That goes particularly for some breeds of cats and dogs. I am very struck by what the noble Lord said.

I also agree with the noble Baroness, Lady Jones of Whitchurch, that all of us—and by that I mean the whole community—need to be alert and vigilant. Yes, the Government and the local authorities have a responsibility, but people seeking to bring animals into their homes also need to feel a sense of responsibility.

I will seek to answer, in no particular order, as many of the questions as possible. For those that are slightly more intricate, I will of course write.

The noble Lord, Lord Clark of Windermere, opened his contribution by talking about the responsible sourcing publicity campaign, and I particularly want to reassure the noble Baroness, Lady Bakewell of Hardington Mandeville, that this comprehensive campaign is designed to be a pre-Christmas communication. It is a vital time when families sometimes need to be much clearer that, as we all know, a puppy is for life and is not a statement for Christmas Day to amuse people. A puppy is a responsibility, and people should source their animals, whether puppies or kittens, from responsible breeders and be responsible themselves. The campaign we are launching is therefore aimed precisely at the public to encourage people to have a responsible sourcing mindset. This will ensure that people have no excuse for not knowing where to go to buy a pet. Currently, the best place to source a pet is through one of the nation’s many legitimate rescue and rehoming organisations or, specifically, a licensed breeder.

This leads me on to an issue raised by my noble friend Lady Byford, the noble Lord, Lord Clark of Windermere, and the noble Baronesses, Lady Jones of Whitchurch and Lady Bakewell of Hardington Mandeville. I refer to the rescue and rehoming sector. As we all know, legitimate rescue homes do incredible work rescuing and rehoming thousands of sick, abandoned and stray animals each year. It has been my privilege to visit Mayhew rehoming centre, Battersea Dogs & Cats Home, Dogs Trust, and Cats Protection, to name a few. I have seen at first hand their commitment to rehoming. It is fundamental that the quality of welfare provided at these rescue organisations is consistent, and I underline “consistent.” Noble Lords and animal welfare groups have expressed concerns about unscrupulous breeders reinventing themselves as rescue centres. We need to be confident of the benefits and the impacts of any regulations placed on the sector, particularly on some of the smaller rescue and rehoming charities, which is why we are actively exploring these issues with all organisations involved. In the meantime—this point is for the noble Baroness, Lady Bakewell, in particular—we have updated the statutory guidance to make clear that those who rehome in the course of running a business are subject to the ban.

My noble friend Lady Byford mentioned commercial sellers. In the guidance to local authorities, there is advice on how to differentiate between commercial breeders and one-off sales. As I said, the guidance is being updated following the statutory instrument.

My noble friend Lady Byford and other noble Lords raised the issue of enforcement. Local authorities lead on implementing and enforcing animal licensing controls and have the power to charge a licence fee that factors in the reasonable costs of enforcement associated with a licensable activity. Defra works closely with local authorities, and the City of London leads on training of local authorities and inspectors.

Perhaps I could have a conversation with the noble Countess, Lady Mar, outside the Chamber about the specific points she raised, but training is clearly essential. This is why we have ensured that the parent regulations reflect the importance of training courses for inspectors. As well as attendance at one of the specialist courses, “suitably qualified” also covers experienced inspectors with prior experience of working as local authority welfare inspectors. The cost of training inspectors can be recovered by the local authorities through the full cost recovery provisions in the parent statutory instrument. As I said, there is ongoing training. I do not have the figures, but I know that this is also work very much in hand. Clearly, we need to have sufficient suitably qualified inspectors. We are raising the bar because we do not resile from the fact that we need to ensure that, when people inspect premises, they know what to look for. That is imperative.

The noble Lord, Lord Trees, asked whether you need two licences to breed and sell puppies. No, the individual who breeds dogs and sells puppies will require only a dog breeding licence, which covers sales as well as breeding.

My noble friend the Duke of Montrose asked about working dogs. Under this legislation, working dogs would be allowed to be sold by licensed third parties if the animals are over six months old. This is precisely the point of the statutory instrument: puppies and kittens should no more be sold other than by licensed breeders, with the security of knowing about the mother and so forth. If the puppy is under six months old, the sale would be prohibited. The breeder themselves, of course, would be able to sell the puppies.

A number of noble Lords, including the noble Lords, Lord Clark and Lord Trees, and the noble Baronesses, Lady Bakewell and Lady Jones, raised the issue of online sales. Under the licensing arrangements brought in last year, online adverts now have to include a licence number and a picture of the animal in the environment in which it is reared. As I think we have discussed before, we are also continuing to work with the Pet Advertising Advisory Group to improve online advertising standards.

The noble Lord, Lord Trees, and the noble Baroness, Lady Jones of Whitchurch, referred in particular to puppy smuggling. This country has one of the toughest pet border regimes in the world. Every pet dog travelling to Great Britain on approved routes has its microchip and passport checked to confirm it is properly vaccinated and is old enough to travel. We clearly now have an opportunity to look at how we can further strengthen our controls to crack down on animal traffickers and put a stop to an abhorrent and illegal trade. We need to work to deter illegal puppy traders by buying puppies only from reputable breeders, seeing the young animal with its mother and checking its health history.

Defra wishes to tackle this matter comprehensively. For instance, we are working closely with the Dogs Trust to continue the work of the Dover puppy pilot. We regularly review our activities at the border to ensure our enforcement work aligns with the threat posed by what is, I am afraid, an evolving trade. Those involved in this trafficking are often involved in other criminal activity. I hate to say it, but we need to be much more in tune and understand that these criminals will move from one trade to another. We are increasing resources for detecting smuggled puppies, and have done so by one-third at major UK ports since 2017. We have also increased our intelligence capability by launching a new dog importation intelligence steering group, co-ordinated by the Animal and Plant Health Agency. It consists of national enforcement agencies such as HMRC, the police and the RSPCA, who form a collaborative partnership to disrupt puppy smuggling. We are also considering stricter penalties for those caught smuggling. Seeing the prosecutions, the fines and the imprisonments, I think that this is the direction of travel needed to ensure that animals are safeguarded from these unscrupulous people.

Responding to be a point raised by my noble friend Lord Lexden and the noble Baroness, Lady Bakewell, I fully accept that we committed to introducing the legislation necessary to increase the maximum penalty for animal cruelty from six months’ to five years’ imprisonment. We are working at the highest level to ensure that the legislation needed to make this change is introduced at the earliest opportunity. I know that I have not given a date or a time, but I assure noble Lords that my department is fully seized of the need for this. Sometimes one cannot get as much done as one would like, but we are stressing the importance of this.

My noble friend Lady Byford raised the point about a non-supportive sample; in fact, it was a very considerable supportive sample, probably much more than for most proposals. There may have been some concern not about the regulations themselves but, as we have discussed, about unscrupulous rescue centres and unintended consequences. We must be alive to that, be pro-active to ensure that we are constantly snuffing these matters out, and develop and evolve policy as required. Sometimes one would like to do these things sooner, but this needed the consultation because we needed to ensure that there were no unintended consequences. None of us would have done a good day’s work if we had brought this in immediately and not got pet dealers well versed in the importance of this, to ensure that there were no adverse consequences to kittens, puppies and mothers in the interregnum.

I assure all noble Lords who have spoken in this debate that we will have a comprehensive communications strategy before Christmas. I am sure that my private office team are listening. The campaign we are going to unfold will be put to your Lordships very clearly, so that our good faith in it is held mutually and not just within Defra. In the meantime, I commend the regulations to the House.

Motion agreed.

Wild Animals in Circuses (No. 2) Bill

Lord Gardiner of Kimble Excerpts

2nd reading (Hansard): House of Lords
Wednesday 19th June 2019 Lords Chamber

Moved by

[Lord Gardiner of Kimble]

That the Bill be now read a second time.

[The Parliamentary Under-Secretary of State, Department for Environment, Food and Rural Affairs (Lord Gardiner of Kimble) (Con)]

My Lords, this is a straightforward Bill. It seeks to prohibit the use of wild animals, whether in performances or displays, in travelling circuses. There is strong public opinion in support of this and government consultations in England, Wales and Scotland show that well over 90% of respondents are in favour. This reflects the Government’s view that seeing wild animals in circuses does nothing to further our understanding or conservation of wild animals.

In 1990, there were 20 travelling circuses using over 250 wild animals between them. Now, there are two travelling circuses with 19 wild animals in total—specifically, six reindeer, four camels, four zebras, two racoons, one fox, one macaw and one zebu.

Consideration of this issue arose during debates on the Animal Welfare Bill in 2006. The Government at the time agreed to consider whether it would be possible to bring forward a ban on the use wild animals in travelling circuses under powers in that Bill, now the Animal Welfare Act 2006.

Matters moved on and, in 2012, the Government announced their intention to introduce primary legislation on ethical grounds, but as an interim measure they introduced a seven-year circus licensing regime to ensure that a high standard of welfare was secured for any travelling circuses still using wild animals while parliamentary time was found to enact a ban. The regulations were recently reviewed and found to have been successful in safeguarding the welfare of the animals. In their review of the regulations, the Government confirmed that they would not be renewed.

The regulations are due to expire on 20 January 2020, which is why it is critical that we now deliver the commitment in my party’s manifesto. The Bill is essentially a tidying-up exercise following the long-term planning on the part of the Government to prohibit the use of wild animals in travelling circuses.

Clause 1 makes it an offence for a circus operator to use a wild animal in a travelling circus in England. The offence applies only to the operator of a travelling circus; that is, the person with overall responsibility for it. The “use” of a wild animal is defined as both performance and exhibition as part of the circus. This should cover those circumstances where wild animals are put on display by the circus, usually just adjacent to the big top, as well as where the animal performs in the ring.

The penalty for a circus operator found guilty of using a wild animal in a travelling circus is an unlimited fine. Where any evidence is found of a wild animal being mistreated, the Animal Welfare Act 2006 will of course apply, as is currently the case. The Act provides powers to seize animals should there be welfare grounds to do so.

Subsection (5) contains definitions for some of the terms used in Clause 1. “Wild animal” is defined as,

“an animal of a kind which is not commonly domesticated in Great Britain”.

This is based on the definitions used in the Zoo Licensing Act 1981 and the Welfare of Wild Animals in Travelling Circuses (England) Regulations 2012. The guidance to the Zoo Licensing Act 1981 sets out clearly which animals should be regarded as wild or domesticated, and we intend to take a similar approach in guidance.

To clarify, a wild animal is still “wild” if it has been born in captivity. While most of the wild animals currently in English circuses were bred in captivity, usually from several generations of circus animals, they are still wild animals. Although the animals will have been tamed and trained to respond to humans, this does not mean that they have become domesticated. Domestication refers to a genetic selection process that occurs over multiple generations, often over hundreds if not thousands of years, effecting changes in traits across a population of animals. Individual or groups of “tame” wild circus animals are still wild animals for the purposes of the Bill.

The Bill does not include a definition of “travelling circus”. The Government’s view is that it is better for the term to take its common meaning and that prescribing a definition of “circus” is problematic on two counts: either it would be defined too broadly and thus reach further than intended, capturing other activities involving animals that move from place to place, or it would allow circuses to avoid the legislation by avoiding any features that captured them in the definition.

Clause 2 provides for the powers of inspection in the schedule to the Bill. Inspectors under the Bill would be appointed on a case-by-case basis by the Animal and Plant Health Agency, drawing on our existing list of approximately 50 zoo licensing inspectors. Given the expertise of these inspectors and their experience in working with captive wild animals, we can draw from this existing list of inspectors if there is ever a need to gather evidence to prove the offence in the Bill. If it were necessary for a police constable to be present during an inspection, the powers in the Bill allow for two people to accompany the inspector and use the powers of search and entry under the inspector’s supervision.

Clause 3 makes a minor amendment to the Dangerous Wild Animals Act 1976. The 1976 Act requires persons who wish to keep dangerous wild animals as listed in the Act to be licensed; however, the Act currently exempts any dangerous wild animal kept in a circus from that requirement. This amendment would remove that exemption and mean that any dangerous wild animal, as listed in that Act, kept by a circus would need to be licensed by the circus’s local authority, with an annual inspection. For example, the zebras and camels would need a licence under that Act. The Scottish Government, who have already introduced a ban on the use of wild animals in travelling circuses in Scotland, have asked to extend our amendment to the 1976 Act to Scotland.

Clause 4 provides that the Act comes into force on 20 January 2020, the day after the interim circus licensing regulations expire. I confirm that we will be producing guidance in good time for 20 January, which will clarify the terms used and the enforcement powers, and will give more detail to aid understanding of the content of the Act.

The Wild Animals in Circuses (No. 2) Bill has come at a time when we increasingly appreciate that the use of wild animals in circuses does nothing to advance either our understanding of animal behaviour or the conservation of wild animals. I believe that people wish to perceive wild animals in their natural state, expressing all the natural attributes of being wild, not performing tricks in the circus ring for our amusement. The promise of this legislation was contained in my party’s 2015 manifesto and I know that there is strong support for the Bill across the parties. The timing of the Bill is critical, with the sunset clause on the regulations approaching. It is time to make progress on this legislation and I beg to move.

--- Later in debate ---

[Lord Gardiner of Kimble]

My Lords, this has been an extremely thought-provoking debate from the outset. This is a measure which is designed, at this stage, to manage 19 wild animals, but we have gone into a wider debate as well. It is very important from the Government’s point of view to acknowledge the contributions from the noble Baronesses, Lady Mallalieu and Lady Bakewell, the noble Lord, Lord Trees, and my noble friend Lady Byford, with all her farming experience.

There was concern about whether this could in any way be considered the first phase or step towards addressing what were described by the noble Baroness, Lady Bakewell, as “legitimate” activities. As she said that, I thought about “One Man and His Dog”, falconry displays and, as a farmer, the grand parades at county shows, as well as the respect, love and responsibility we have for our animals. As a country person, the distinction I place is that this measure relates to the use of wild animals in travelling circuses. I want to place it on record that I utterly reject the extreme actions of those who believe that intimidation is how to get their way. I am absolutely certain that all noble Lords who spoke in this debate would not for one minute think that intimidation was the right way forward.

We have thought of this as being the right way forward over time. Indeed, it was in my party’s manifesto and I rather think it was in the Labour and Liberal Democrat manifestos. We have reached a time when we have an expression or a feeling that the use of wild animals in travelling circuses for our entertainment is not appropriate for those animals. I have no doubt about what the two circus operators have said, on record, about their regard and love for those animals. As I said, the animals were found to have been well cared for in welfare inspections.

This is about whether we should be thinking much more about wild animals having what I would describe as their natural behaviour and expression. I support this Bill for those reasons. I agree with my noble friend Lady Byford that this is about seeing wild animals in their proper environments. I put on record, in response to the noble Baroness, Lady Mallalieu, that we do not see this Bill as having unintended consequences. This is a measure that we thought should be introduced. We have thought that for some while; indeed, my noble friend Lady Byford referred to her endeavours in the 2006 parliamentary skirmishes. I should say to my noble friend Lady Anelay that this measure relates to England. The Welsh Government are bringing forward their own proposals and the Scottish Government have already gone forward.

The noble Baronesses, Lady Mallalieu and Lady Jones of Whitchurch, referred to the tigers and elephants of yesteryear. Indeed, there are circuses on the continent that still use these types of animals. The point is that without this legislation they could be reintroduced even under the current licensing regime. The Bill does not just stop the use of the 19 wild animals in question, it prevents others being added in the future—that is the point I should make.

The noble Baroness, Lady Mallalieu, asked why the use of wild animals in travelling circuses is to be banned. Again, I ask whether these performances add anything to our understanding of conservation of wild animals. I go back to their natural behaviour. I think that wild animals in circuses, whether they are trained well or not, are trained for our entertainment and amusement. I am interested in what the noble Lord, Lord Trees, said about this and I am conscious of his veterinary expertise and the points made about the BVA, but that is my distinction.

A number of points were made about other legislation in the pipeline and the desire for it. I say to the noble Baronesses, Lady Jones of Whitchurch and Lady Mallalieu, that I am fully seized of our commitment to increase sentences. This is something we wish to attend to and to introduce as soon as possible. I will say, because many of us are engaged, that Finn’s law, which has achieved Royal Assent, has very much strengthened the protection of animals. We are going to have a statutory instrument next week. In truth, we can have a bit of a political knockabout, but the noble Lord, Lord Trees, is right: actually, this Government have brought forward many modernising measures to ensure that animals are better cared for. On the point of sentience raised by the noble Baroness, Lady Jones of Moulsecoomb, we have been clear that we will introduce our animal sentience proposals after we leave the EU.

The fate of the 19 was raised by the noble Baroness, Lady Mallalieu. She used the term “get rid of them”. Actually, that is absolutely not what I understand from the operators of both circuses, who have placed it on record that the animals would either be rehomed, retired to their winter quarters or used in other work—for instance, there is television and film work. That will certainly not be banned by this legislation, which is about the use of wild animals in travelling circuses. It is right to acknowledge, as I do, that circus operators have placed on record their care for these animals: they have even referred to them as part of the family. So their future has been assured and that is important, because some are quite young. I was looking at the ages at some of the animals. Given the length of their captivity, some of them have a very long lifespan left.

I disagree, if I have it right, with the point made by the noble Baroness, Lady Jones of Moulsecoomb, on the use of animals such as dogs and horses in circuses and racing, provided that it is respectful and that animal welfare measures are there. We have, as the noble Baroness, Lady Jones of Whitchurch, said, some of the most impressive animal welfare legislation in the world. If there is no use for animals, they will no longer be bred. As we have unfortunately a much more mechanised world, many of the animals that we used for very heavy-duty work are no longer required—and thank goodness. We need to be thinking about the manner in which we use and respect them.

On the definition of “wild”, I would say to my noble friend Lady Fookes and the noble Baroness, Lady Mallalieu, that we have sought to use an approach that is consistent with other legislation and the definition of the Zoo Licensing Act 1981, as I said in my opening remarks. It is important to be consistent. The noble Lord, Lord Trees, and other noble Lords asked about the definition of “travelling circuses”. We have given this a lot of thought; indeed, the Scottish Government have also chosen not to define “circus” in their Act. We think that prescribing a definition of “circus” would open up the possible risk of future circus operators seeking to avoid prohibition.

Indeed, a contrary but wider view is that we also do not wish to prohibit wider ranges of activity than are strictly intended by the travelling circus. So the common-sense approach is to draw up clear guidance. The noble Baronesses, Lady Jones of Whitchurch and Lady Bakewell, quite rightly said from the Opposition Benches, “Come on, we want a timescale on this”. I can confirm that we will publish guidance to the Bill by 20 November, two months before the ban comes into effect. We are working on that and it is obviously important. My noble friend Lady Fookes, who is experienced in this, raised the point about guidance; as in Scotland, we do not intend the guidance to be statutory, but it must and will provide clarity on the terms used in the Bill and aid enforcement. Obviously, as with all these things, ultimately this will be determined by the courts—but the common-sense approach of our guidance will help.

My noble friend Lady Anelay also raised the question of Northern Ireland. As we all know, this is a devolved matter, and in the absence of a Government in Northern Ireland Defra officials spoke to officials in the Northern Ireland Administration. Those officials believed that,

“practical, administrative and policy considerations”,

meant that they did not feel that they wanted to participate in the Bill. However, I should say that at this time there are no travelling circuses touring Northern Ireland with wild animals, and the Republic of Ireland banned travelling circuses with wild animals last year. So officials felt that these considerations should wait until Ministers were back in place in Northern Ireland—and, of course, we all very much want the return of devolved arrangements in Northern Ireland.

My noble friend Lady Anelay also queried in a sense whether the two licensed travelling circuses could move to Northern Ireland. For these few months it is obviously a possible suggestion. That said, neither has travelled to Northern Ireland; that may well be to do with the costs involved and the distance from their winter quarters. Of course, animal welfare legislation in Northern Ireland would cover the welfare of any wild mammals there until such time as the Administration took a decision on whether to ban the use of wild animals in circuses. However, we have devolution and must respect that settlement, although the message is clear; the Republic has banned them, Wales is about to and Scotland already has. This is our legislative measure.

There are a number of other points. My noble friend Lady Anelay asked about seizure. The powers of seizure in the Bill are reserved for those powers necessary to prove the offence. We would never need to seize a wild animal to prove the offence, so we think that such a power would be disproportionate. If it were necessary to seize an animal in distress, Sections 18 and 19 of the Animal Welfare Act 2006 already provide the appropriate powers. Indeed, Section 4 of the Dangerous Wild Animals Act 1976 would also allow an unlicensed dangerous animal, as listed in that legislation, to be seized.

My noble friend Lady Anelay and the noble Baroness, Lady Bakewell, referred to international matters. I wish to record that my noble friend did so much during her term at the Foreign and Commonwealth Office to protect the planet’s most iconic species. Last year we hosted the largest ever illegal wildlife trade conference, bring together more than 70 countries. We are spending £26 million to protect and support wildlife across the globe.

The noble Baroness, Lady Bakewell, asked about enforcement powers. Interestingly, it is a small Bill with a big schedule on enforcement. The Bill provides inspectors with powers to search for and gather evidence of an offence. Defra has approximately 50 inspectors appointed for zoo inspections, as I said. Several of them inspect the two circuses currently licensed by Defra to use wild animals. All inspectors are either qualified veterinarians or have extensive experience of working with captive animals. They will be experienced in identifying and, if need be, handling species of wild animal. We can draw on the existing list of inspectors if there is ever any need to gather evidence to prove the offence in the Bill. The offence will apply only to the operator of the circus—that is, the person with overall responsibility for the circus.

On the question of police constables, again, if an animal is in distress, the Animal Welfare Act already provides powers for the police to respond quickly. The schedule provides powers to search for evidence of the offence contained in Clause 1. This includes taking up to two persons with them on an inspection. Of course, one or both of those persons could be a police constable. Enforcement of Bills such as this often requires a specialism in wild animals—but, as I said, there is every opportunity, if need be, for a police constable to be part of that.

The noble Baroness, Lady Jones of Whitchurch, queried what might happen in these last months. Again, we believe that it is very unlikely that such tours could happen. I shall expand a bit on why. Travelling circuses tour during the summer months and typically return to their winter quarters at the end of October each year. Acquiring new animals and training them to perform a specific routine, which takes time, would normally occur at the winter quarters. It is therefore very unlikely that circuses would change their routine and add new animals to their performances mid-term and mid-tour. Given that a ban will be in place before the next touring season, it would make very little economic sense for circus owners to invest in new animals, enclosures and equipment now. Indeed, if they were to do so, there would have been nothing to stop them doing so before this touring season commenced.

The Government made clear when they published the review of interim licensing regulations that no more licences would be issued after January 2020. I assure the noble Baroness and your Lordships that, since the Bill was introduced on 1 May, we have had no queries from circuses about introducing further wild animals before the end of this touring season.

This debate has been thought provoking. In many cases it has gone beyond what might happen to the 19 animals. It has included issues about the use of animals both wild and domesticated. I again say emphatically that the Government’s intent in this legislation is not to embark on further approaches to what we have all said on record are legitimate activities that respect animals. I beg to move.

Bill read a second time and committed to a Committee of the Whole House.

Plastic Bag Charge

Lord Gardiner of Kimble Excerpts

Monday 17th June 2019 Lords Chamber

[Lord Hayward]

To ask Her Majesty’s Government when they expect to make an announcement concerning the introduction of the 10p plastic bag charge in England.

[The Parliamentary Under-Secretary of State, Department for Environment, Food and Rural Affairs (Lord Gardiner of Kimble) (Con)]

My Lords, earlier this year we consulted on proposals to extend the charge to all retailers and to increase the minimum charge to 10p. To advance this matter, we will publish both the summary of responses and the Government’s intended action very soon. This follows the banning of plastic straws, cotton buds and stirrers from next April, as well as our consultation on placing responsibility for the cost of managing packaging waste on producers.

[Lord Hayward (Con)]

My Lords, in January 2018 the Prime Minister announced the intention to extend the single-use carrier bag charge to all retailers. Eight months later, it was announced that there would be consultation. Five months later, the consultation started. Four months after that, I received a letter from Defra saying that the announcement would be made soon. That was almost two months ago. Why is it possible to choose a Prime Minister in eight weeks when it is impossible for Defra to make a decision about bag charges—which all the industry favours—80 weeks?

[Lord Gardiner of Kimble]

My Lords, that is an intriguing comparison, but the position is that combining the publication of the summary and intended action will reduce the overall time taken, compared to publishing each separately. We have indeed had to take a little longer because officials have needed to undertake additional policy work in response to feedback from consultation. I assure my noble friend—and all noble Lords—that we are fully seized of the importance of plastic reduction.

[Lord Dubs (Lab)]

My Lords, I do not wish to be discourteous to the Minister, but his answer sounded like a direct quote from “Yes Minister”. Would he like to think about it again? This is intolerable. We have been waiting years to put a charge on plastic bags. We have it on some but not on others. Why can we not just get a move on? Why does it take so long?

[Lord Gardiner of Kimble]

My Lords, that is not quite the case, as with all such things. I am well aware of the sort of responses one is given, but as I said, perhaps the interpretation of “very soon” should be in a glossary of terms. I am very conscious that we need to take action on this. By the end of this year, many of the larger retailers will not be using single-use plastic bags at all. We are working with all retailers and market traders to address this fully, because we want to get this right.

[Baroness Boycott (CB)]

My Lords, 10p seems incredibly cheap for something that can last for 1,000 years before it biodegrades, but why is the consumer bearing all this? What regulations are the Government going to impose on the supermarkets and the food retailers to cut down the amount of packaging they use? It is insane that bananas are wrapped in plastic. I know it is complicated, and to do with how long food lasts, but will the Minister assure me that the Government will undertake proper consultation and then introduce regulation, rather than just responsibility?

[Lord Gardiner of Kimble]

My Lords, the noble Baroness is right that one of the complications is that certain wrapping increases how long produce lasts and stops food waste, so we need to look at these things thoroughly. We also think that those producing the packaging should be responsible for the costs of clearing these matters up—that is what we are consulting on at this very moment. The consultation is important because we need to reduce plastic packaging.

[Baroness Bakewell of Hardington Mandeville (LD)]

My Lords, there are now many biodegradable carrier bags being used by small retailers who handle food, including butchers. These bags are alleged to degrade in landfill in 12 to 24 months. Surely if these bags are going to landfill, this somewhat defeats the object of the tax. Do the Government plan to extend the 10p tax to biodegradable bags, and are they aware that such bags contain additives to accelerate the degeneration process? Can the Minister assure us that these are not harmful to those who have eaten food that has come into contact with these bags?

[Lord Gardiner of Kimble]

On the last point first, it is important that research is going on, including at EU level, on certain types of degradable plastics—precisely because of chemicals and microplastics. Again, this is not a straightforward matter where we can just press a button and get something resolved. We need to worry about the unintended consequences. A lot of work is going on on these points and I will write to the noble Baroness in some further detail on her first point.

[Baroness Neville-Rolfe (Con)]

My Lords, I have been campaigning on the plastics issue now for two years, and progress has been too complex and too slow, for example on bags, as we have heard. Does the Minister expect to be able to announce very soon, with dates, a genuinely single system of waste collection in England and a compulsory system for marking plastic on its recycling characteristics?

[Lord Gardiner of Kimble]

My Lords, a lot of what my noble friend said is involved in the consultation, which closed on 13 May—that is the only precise date I can give—but it is therefore now being considered. We are analysing the responses on consistency of both household and business recycling collections. I know that one point which my noble friend has constantly raised is on the quality and quantity of the materials collected for recycling. The consultation seeks views on that and one proposal is for all collectors of waste to collect a core set of materials from households and businesses. We want to make it as straightforward as possible for everyone to recycle.

[Baroness Smith of Basildon (Lab)]

My Lords, the Government really have to get a move on with this. As the noble Baroness, Lady Boycott, said, it is not just about plastic carrier bags. Last year, Theresa May said that by the year 2043—there might have been several new Tory leaders elected by then—the Government aimed to eliminate all avoidable plastic waste. Yet whenever I go to the supermarket and unpack the shopping when I get home, I have far more than one carrier bag’s worth of it. In fact, when I take my wheelie bin out on a Thursday night it is almost hard to move it because of the amount of so-called recyclable materials in it. Can the Minister be a little more specific? What proposals are the Government considering now that would, first, reduce the use of single-use plastic but, secondly, task producers with dealing with the environmental impacts of their packaging?

[Lord Gardiner of Kimble]

My Lords, I am very pleased that, like all of us, the noble Baroness is seeking to recycle more. I think we all want to recycle much more. On the extension of the producer responsibility on packaging, she is quite right that too much plastic packaging is produced and that obviously needs to be addressed. On taxation, we have already said that by 2022 there will be a tax on producers who do not use at least 30% recycled material in their products. All this is about a mechanism to reduce the use of plastic packaging and recycle more.

Children’s Health: Vehicle Emissions

Lord Gardiner of Kimble Excerpts

Tuesday 11th June 2019 Lords Chamber

[The Parliamentary Under-Secretary of State, Department for Environment, Food and Rural Affairs (Lord Gardiner of Kimble) (Con)]

My Lords, I join all noble Lords in thanking the noble Baroness, Lady Randerson, for securing this debate. From all the contributions made today, it is clear that we all acknowledge that air pollution is the greatest environmental risk to human health. It is right that the noble Baronesses, Lady Jones of Whitchurch and Lady Bull, referred to this as a considerable world challenge, as well as a challenge in our own country. We all know that poor air quality affects our health and quality of life and, as has been said precisely today—by the noble Baroness, Lady Blackstone, in particular, and by the noble Baroness, Lady Randerson, in her opening remarks—children are particularly vulnerable, be it their lungs or their development. I therefore hasten, in the time I have, to set out as much as I can about the strong and urgent action that we are taking.

I understand of course what the noble Baroness, Lady Jones, meant. I hope everyone will see that that we simply cannot carry on as we have in the past. The Clean Air Strategy was published this year; indeed, the WHO welcomed it as an example for the rest of the world to follow. The strategy outlines a package of comprehensive measures taking decisive action to reduce emissions of harmful air pollutants from multiple sources. It is important for us to continue to drive down emissions from all sources to reduce overall background air pollution over our cities and towns. We have already taken action on specified generator controls and medium combustion plants, and we will put forward proposals on the most polluting domestic fuels.

The clean air strategy will be underpinned by new legislative proposals in the environment Bill to ensure stronger and more effective action. I say to my noble friend Lord Dundee that the office for environmental protection will be an independent statutory environmental body, which will hold the Government to account on environmental standards. I say to the noble Baroness, Lady Randerson, my noble friend, and the noble Baroness, Lady Jones of Moulsecoomb, that of course I will look at her Bill. The environment Bill is a second Session piece of legislation but a considerable one and I, or whoever else scrutinises it, look forward to doing so with your Lordships.

I would say in context that emissions of air pollutants have reduced substantially since 2010. Primary emissions of fine particulate matter and emissions of nitrogen oxides are indeed at their lowest levels since records began. This progress was achieved through regulation, investment by industry, cleaner processes and, indeed, a shift towards cleaner forms of energy. But it is clear not only from what your Lordships have said but from what the Government recognise that very much more has to be done. That is heard loud and clear. The most immediate challenge is tackling nitrogen dioxide concentrations around roads. We are taking determined action on vehicle emissions and testing. Indeed, we have been at the forefront of calls for action at EU level to introduce real driving emissions testing. The first stage of this new, more stringent regime came into force this year.

In 2017, we published the UK Plan for Tackling Roadside Nitrogen Dioxide Concentrations, supported by a £3.5 billion investment in air quality and cleaner transport. I hope that I can persuade the noble Baroness, Lady Bull, about “no action”, and indeed gently chide the noble Baroness, Lady Jones of Whitchurch: I am sure she will understand that the “dash for diesel” has not helped with what we need to counter. I say that genuinely; we all seek to do the right thing but sometimes it turns out not to be the right path. We are exceeding our nitrogen dioxide targets but it is the only pollutant we are exceeding on; we need to concentrate on that, among other matters.

Noble Lords have spoken about local authorities. The Government are working closely with 61 English local councils and have placed legal duties on them, underpinned by almost £495 million of funding to tackle nitrogen dioxide hotspots. We have assessed plans to ensure they meet the strict criteria to improve exceedances in the shortest time possible. Where plans do not meet the criteria, they are rejected. I say again to many noble Lords—the noble Baronesses, Lady Jones of Moulsecoomb, Lady Blackstone and Lady Randerson —that local authorities are best placed to use their powers and local knowledge to take action when addressing localised pollution hotspots, including around schools. I understand that the recalibration of traffic lights, for instance, can change exceedances. I think we would all agree that it is commonsensical that there is great partnership with local authorities, and I would say that we are seeing results. Leeds and Birmingham will introduce clean air zones from next year, Nottingham is being supported to retrofit its bus fleet and Southampton docks are introducing freight consolidation and measures to encourage sustainable and indeed active travel.

We are committed to investing in and promoting active travel such as cycling and walking. Active travel can have huge benefits for health and well-being, road congestion, air quality and economic and local development. These of course are issues that the noble Lord, Lord Russell of Liverpool, who is a cyclist, the noble Earl, Lord Listowel, and my noble friend Lord Dundee raised. The investment is almost £2 billion during this Parliament. That includes £50 million for Bikeability cycle training in England outside London. In 2018-19 around 400,000 children were trained.

Our 2025 target of 55% of primary schoolchildren walking to school is being delivered through the £3 million Walk to School programme, which started in 2015. In 2017-18 205 primary schools participated, with 14,254 more pupils and their parents walking to school. Walking to school rates have increased across all schools by 30%. I say to the noble Lord, Lord Russell, that I do not need the iPlayer because I watched that documentary last night; the noble Baroness, Lady Randerson, very sweetly suggested that I was already on my way home to watch it. I was very struck by the programme for a number of reasons, particularly how demonstrating behaviour changes and targeted action can deliver real change. My noble friend Lord Dundee and the noble Earl, Lord Listowel, referred to parents. I was very struck by the positivity of parents; the gasp of horror when it was seen that driving your child to school in a car was the worst option; and the fact that the 25-minute walk to school, rather than a 10-minute drive, became a pleasure, although I know that in inclement weather that may not be so attractive.

As I have mentioned, the work that we have done and are doing to tackle nitrogen dioxide vehicle emissions is a top priority. On particulate matter, we have achieved a considerable reduction of exhaust emissions through tighter vehicle standards. On non-exhaust emissions, tyre and brake wear—I think reference was made to this last year—we issued a call for evidence to inform policy development and will take further action, informed by the Air Quality Expert Group. That will be published later this year.

As part of the £3.5 billion funding, there is an annual air quality grant. Colchester Borough Council and Hertsmere Borough Council are closely working with their schools on travel behaviour change programmes, while Islington will perform an indoor nitrogen dioxide study to test air quality. There are many more examples of local authorities working effectively with government funding.

We have plans to take further action on vehicle emissions. Our mission is to put the UK at the forefront of the design and manufacturing of zero-emissions vehicles. We also need to increase the number of electric cars on our roads. To achieve that, drivers must clearly have access to the right infrastructure, which is why the Chancellor announced a £400 million investment to make it a reality. The Government have also committed £274 million to the Faraday battery challenge to ensure that the UK is a world leader in battery technology, and have separately awarded over £300 million in grants via Innovate UK, something I know my noble friend Lord Dundee would be interested in.

By 2030 we want at least half of all new cars sold, and as many as 70%, to have ultra-low emissions. Our grant schemes and £400 million public/private charging infrastructure investment fund will see thousands more electric vehicle charge points installed. We have one of the largest networks in Europe, and in 2018 the UK was the second-largest market for ultra-low emission vehicles in the EU.

There is so much more I would like to say, but I want to emphasise that we recognise that awareness is vital for this and for taking firmer action. It is one of the reasons why I am pleased that the City of Westminster has an anti-idling policy. We need to make that much broader, and I am interested in the legislation. My understanding is that local authorities have many of these powers in any case. We are working with organisations such as Global Action Plan and the UK Health Alliance on Climate Change to improve the information and advice available to people, to ensure not only that they understand the impacts of poor air quality but can take their own action.

I strongly agree with the conclusions of the noble Baroness, Lady Randerson. Achieving cleaner air, which is an objective we all share, requires a partnership. It is the responsibility of government, local government, businesses and individuals. We must improve air quality through collaboration, raising public awareness and taking concerted action, with public moneys and public support. It is an urgent matter. Whichever Prime Minister is in office, and whatever the colour of government, this issue is vital and we need to manage it and deal with it. We owe that to all our citizens, but as your Lordships have so clearly stated, this is a particular issue for the next generation and we must deal with it on their behalf.

[Baroness Jones of Moulsecoomb]

Before he sits down, could the noble Lord answer my question? Will there be a full clean air programme specifically for children?

[Lord Gardiner of Kimble]

I have so much more to say. I will write to the noble Baroness.

Kew Gardens (Leases) (No. 3) Bill [HL]

Lord Gardiner of Kimble Excerpts

3rd reading: House of Lords
Tuesday 11th June 2019 Lords Chamber

Moved by

[Lord Gardiner of Kimble]

That the Bill do now pass.

[The Parliamentary Under-Secretary of State, Department for Environment, Food and Rural Affairs (Lord Gardiner of Kimble) (Con)]

My Lords, in moving that the Bill do now pass, I take this opportunity to express my gratitude to all noble Lords for their interest in the Bill and for their contributions. I am grateful for the positive engagement and support of the noble Baronesses, Lady Jones of Whitchurch, Lady Kramer and Lady Bakewell of Hardington Mandeville, on the Opposition Benches; and I thank my noble friends Lord Eccles, Lord Selborne, Lord Hodgson of Astley Abbotts and Lord True, and the noble Lords, Lord Whitty and Lord Campbell-Savours, for their active engagement and our constructive discussions. I have of course been struck by the level of support for, and the degree of close association with, Kew, including two previous chairmen of Kew and two previous Ministers who had responsibilities for it in your Lordships’ House. I also place on record my appreciation to Defra officials and those from Kew who have assisted us all.

--- Later in debate ---

[Baroness Bakewell of Hardington Mandeville (LD)]

My Lords, I would also like to thank the Minister and Defra officials for their time and patience in providing the very useful briefings. These were very welcome and greatly assisted the process of understanding what the Bill was about for those of us not steeped in the history of Kew. Many of your Lordships are, and it was a great comfort to know that so many Kew experts were taking part in the debate, thus ensuring that this short Bill was improved and provided the necessary requirements.

[Lord Gardiner of Kimble]

In the spirit of what I said before, I want to place on record again that what the noble Baronesses have said is precisely what I feel we are intended to do: to look at these matters and decide a way forward. I was very pleased to play my part in getting the resolution we all wanted: to ensure that this unique scientific institution is properly safeguarded. I am most grateful to noble Lords because we have a Bill we can all be proud of.

Bill passed and sent to the Commons.

Kew Gardens (Leases) (No. 3) Bill [HL]

Lord Gardiner of Kimble Excerpts

Report stage (Hansard): House of Lords
Wednesday 5th June 2019 Lords Chamber

[Lord Campbell-Savours (Lab)]

My Lords, I intervened in Committee and put to the Minister a series of questions to which I hoped he might give me the answers in writing. They have not come, so perhaps he might ask officials to consider the questions I asked during that debate.

The most important protection for the land at Kew Gardens has been the fact that leases could be granted for a maximum of 30 years. The moment you transform that system and change the arrangement such that you can grant leases of up to 150 years, you transform the discussion about the future of that land and its potential use by developers. Even though covenants and restrictions will be in place, developers will look seriously at the long-term potential of the use of the land.

The question for me is: what has been Parliament’s intention during the passage of the Bill? As I have understood it, it is to ensure that no commercial development takes place on the site and that residential development should be restricted to a very small proportion of the land. I am not convinced by that. Parliament is being naive in thinking that the position will remain the same for the next 150 years.

So last night, lying in bed at midnight—as happened on the previous occasion—I went through the documentation that the Minister has provided for us in the past week. That is the framework document, from which I want to cite a number of paragraphs in support of my case.

Paragraph 27.1 refers to a “light touch” annual review of the framework document. It then talks about three-yearly full reviews. What will happen at the end of three years, six years, nine years, 12 years, 15 years, 18 years or 21 years? At what stage do Ministers envisage being under pressure, because the Secretary of State retains powers in these areas, to change the arrangements for future development possibilities on that site?

Paragraph 28.2 confirms the sharing arrangements for developers’ gains—so in the framework document there is recognition that there will be developers’ gains in the future. I am sure developers will study that closely. It may be that, because the intention of Parliament is not altogether clear, lawyers pore over our debates. I am not a lawyer, but I am told that they often refer to parliamentary debates to try to identify what the intention of Parliament was when a particular Bill went through.

Paragraph 7.4 refers to a requirement on Kew,

“to maximise opportunities to increase income”.

Again, that is a pressure point on Kew to maximise income available from the site. In my view, it would be for the development of commercial and residential property.

Under paragraph 7.2, the Secretary of State can set conditions on grant-in-aid funding. In other words, they could pressure Kew to maximise alternative income streams when deciding on the grant-in-aid funding to be made available in any particular year.

Paragraph 21.1 emphasises the requirement for Kew to have regard to “efficiency, costs and resources”—again, that is a pressure.

In paragraphs 23.2 and 23.3, there is a requirement to avoid balances. Under the agreement as I understand it, Kew must not pursue a policy of having balances at the ends of years. In other words, it cannot save money in that way, which will in itself put pressure on resource availability—so much so that I believe that it will seek profits from the development of land on the site.

In paragraph 25.1, a process is set out for Defra’s approval of breaches of the MPM rules, guidance and advice, and in paragraph 9.2 there is a requirement on the Secretary of State to sign off land sales. This, of course, works both ways: it can put a block on sales, but on the other hand it could serve as a notice to future generations that in 2019 it was envisaged or foreseen that land sales would inevitably take place. The question is: what land? I am not suggesting for one moment that it will be land in the body of the site, but I believe that that site has rich future potential and that developers will look at it and argue that, on the periphery of the estate, particularly near the river, there is potential for substantial development.

In Committee, I pointed to a footage price for flats on the present market. Flats down there would sell, even in today’s market, at £1,500 per square foot. That property in the future, on the river at Kew, will fetch far more money than even today’s prices, because it will become prime property. Ministers have completely underestimated the pressure that will be put on the trustees and the people who will be running Kew in the future to maximise their profits through property development on that site. I heard nothing during the debate in Committee that in any way interferes with my view. I believe that that is what will happen, and what we have in the Bill offers insufficient protection, despite all the conditions that the Minister referred to in his responses on that previous occasion.

[The Parliamentary Under-Secretary of State, Department for Environment, Food and Rural Affairs (Lord Gardiner of Kimble) (Con)]

My Lords, I am most grateful to noble Lords for their contributions. I well understand that the noble Baroness’s amendment seeks to restrict the application of the Bill solely to residential properties. It is true that the properties currently in the contemplation of Kew following the Bill are those seven residential properties that are either currently occupied on one-year assured shorthold tenancies or are vacant and require substantial renovation work. That is not to say that these are the only opportunities for Kew, but these are the definite properties that could immediately benefit from the Bill.

I know that noble Lords want only the best for Kew—I absolutely understand what the noble Lord, Lord Campbell-Savours, is saying. In both what I believe I put on record about the protections and, if I am permitted, in suggesting what might follow on the next amendment, Parliament is very clear about the requirement to protect Kew. However, I agree with my noble friend Lord Eccles that restricting leases to residential properties only would have a significant adverse impact on Kew’s ability to benefit from the Bill. All noble Lords have said that we have great trust in the current trustees but we are worried about what might happen in the future. The current trustees and executive feel very strongly that to restrict the Bill will not be helpful to Kew in the future. I want, therefore, to reassure the noble Baroness, Lady Jones of Whitchurch, and other noble Lords by setting out in more detail further properties that Kew might, for example, plan for the future.

Other properties will be considered for the possibility of the grant of a longer lease when opportunities clearly present themselves; for instance, if buildings become vacant and surplus to requirements. As noble Lords know, the care and protection of Kew’s collections is one of the primary duties of Kew’s board of trustees. The board must ensure that its collections are well managed, widely accessible and secure, and provide an optimum environment for scientific collaboration and discovery. This statutory duty will entail developing contemporary world-class facilities for the collections and science research at Kew Gardens, to provide a platform for collaborative, discovery-driven, botanical science to find solutions to the urgent challenges of climate change and biodiversity loss.

As these facilities are realised over the medium to long term, this could enable other buildings to be repurposed for a means appropriate to furthering Kew’s mission and statutory objectives. These other buildings could include office accommodation which becomes surplus to requirements or is in need of significant renovation. In such cases, Kew should be able to explore options that deliver the best possible return for Kew, whether for commercial or residential letting, and which can be reinvested to further its statutory functions.

One such opportunity is 47 Kew Green. This is currently an office building for marketing and commercial staff, albeit not fit for purpose as modern office accommodation and requiring significant renovation work. Should Kew identify alternative space for staff to move out of this building into more suitable accommodation, it would be faced with a choice of renovating the building itself or finding a suitable and sensitive lessee to take the building over and improve its condition. I should add that Kew is very clear that, even with renovation, this building would not be suitable as research facilities to further Kew’s purpose—investigation and research into the science of plants and fungi. Kew may not require the office building in the future, but, equally, preventing Kew leasing it out as a business premises would restrict it, even risking that building becoming obsolete. That is clearly one of the key aims that the Bill seeks to remedy.

Another possibility is Descanso House, a grade 2 listed Georgian building on the edge of the Kew Gardens site. It is not accessible to the public and is underutilised due to its condition. It is currently office accommodation for a small number of Kew staff, with a small office let to a Kew partner on a one-year lease. It is in urgent need of repairs. If alternative office accommodation could be found, this building could be considered for refurbishment, subject to listed building consent and in accordance with guidance in the Kew world heritage site plan.

To restrict the Bill to apply solely to the residential properties would not help Kew. On the basis that the protections are already in place, which I have set out at great length—and, if I may be permitted to say, I believe those protections will be considered in the next amendment—there is no reason to distinguish between residential and commercial leaseholds. From my experience of other large estates such as Kew, I would expect a mix of leasehold lets.

I will look into the points raised by the noble Lord, Lord Campbell-Savours. I recall committing to write on the specific issue of the car park. A copy of that letter should have been placed in the Library and sent to all noble Lords, but I will check. I know I signed the letter, so I am confident that—

[Baroness Kramer (LD)]

To reassure the Minister, I certainly received a copy of it; I believe my noble friend did as well. I do not know whether other noble Lords did, but it was an extremely reassuring letter.

[Lord Gardiner of Kimble]

I will look at Hansard again, because if the noble Lord, Lord Campbell-Savours, thinks that I have not attended to other matters, I of course shall.

On the question of the framework document, Kew is protected but it is absolutely essential that there is rigour in that document, given the use of public money, over the arrangements between the sponsoring department and Kew. All noble Lords would be displeased if there were not confidence that there was rigour in the custodianship of public money. I do not resile from the fact that it is important that there is this arrangement between Defra and Kew. From my experience, the relationship between the two is proper, but with a mutual respect that we understand absolutely the functions that the trustees and the executive undertake on our behalf.

[Lord Campbell-Savours]

The Minister has to accept that what we are discussing today in the Bill is on the basis of the framework document that we can now see. We do not know what the framework document will say in 15 years’ time, yet we are carrying the Bill today.

[Lord Gardiner of Kimble]

My Lords, with the greatest of respect, none of us can command the certainty of what our successors may do. We are here, doing what we can. That is why I am pleased that in the next amendment we will be discussing our protections, which I have already outlined in considerable detail. I have taken great care and attention when discussing this with the trustees and the executive, all of whom have the ultimate bona fides with regard to the future of Kew.

I believe that Parliament, in its scrutiny, is undertaking what is right: the Bill gives Kew the capacity to reduce its maintenance liabilities and running costs, which must be desirable. It generates additional income from property that will help Kew to achieve its core objectives—which is desirable—maintain its status as a UNESCO world heritage site, and to improve the quality of its estate. I do not mean to be facetious, but resources are not infinite. I do not yet know any noble Lord who truly thinks that we have infinite resources, however wonderful Kew is. Therefore this approach must be right. I go to Kew often, and there are buildings there which we are not looking after as well as any of us would wish. This is what Kew wishes us to do, because this is the way that will help it to fulfil its statutory functions.

I say in particular to the noble Baroness, Lady Jones, that, having spoken to those at Kew, I have given examples of buildings that they believe could be better suited to a commercial let but with all the current protections and what I believe we may well go on to. I therefore respectfully ask the noble Baroness to withdraw her amendment.

[Baroness Jones of Whitchurch]

My Lords, I very much welcome the steps the Minister has taken to listen to the concerns that have been raised around the Chamber in the earlier debates and again today. I know that he has done his best to answer all the issues that we have thrown at him over that period, and he has done so again today. It was helpful to hear the examples that he gave. I felt that in earlier debates there was a bit of a black hole, but he has populated that black hole with some credible examples. None of us wants buildings on the site left empty, obsolete or run down, and if there is a plan to deal with those in a constructive way, I think we would all want that to happen.

My noble friend Lord Campbell-Savours was right to say that the lawyers will pore over these debates in years to come, so it has been helpful to have that on the record as Kew’s general intent. The Minister caveated his comments by pointing out that we will shortly have another debate. On the basis that there is more than one way to skin a cat—this was only one way and another is coming up—I beg leave to withdraw the amendment.

--- Later in debate ---

[Lord Whitty (Lab)]

My Lords, while moving Amendment 2, which is in my name and that of my noble friend Lady Jones, I will also speak to Amendment 3—the two are clearly interdependent.

Your Lordships may recall that I expressed my attachment to Kew, its history, scientific excellence and amenity value, and to its aspect and its contribution, as my noble friend Lord Campbell-Savours, said, to that beautiful stretch of the Thames. None of us wishes to prejudice any of that. We want to preserve all those outcomes and benefits, but I recognise that to do so costs money. I was, like the Minister, responsible for Kew for a number of years, and understand that we need to increase the private money going into it. I recognise that the 31-year restriction on the lease was an inhibition on raising some of that money.

However, as my noble friends Lord Campbell-Savours and Lady Jones said, the Bill presented to us was very open-ended and was not restricted to the seven Kew Green properties but applied to any form of asset, building or land within the Kew estate. I therefore clearly felt, as did many other contributors to that debate, that we needed to place some restriction on how leases could be extended. I recognise the need for resources and to update some of the estate, but we need to be pretty firm in ensuring that such leases as are granted by virtue of this very short and apparently innocuous Bill are preserved and that Kew can continue to provide both scientific excellence and amenity value to our people—indeed, to the planet as a whole, because Kew’s contribution to botanical science is a very important element in biodiversity and climate change strategies.

As noble Lords will recall, in Committee I produced an amendment which I thought was pretty good and nailed the restrictions necessary. It referred to any such lease having to be,

“supportive of, or be compatible with the core botanical, scientific, environmental, educational and amenity activities of”,

Kew. I thought that was pretty clear, but since then, after consultation with lawyers—both mine and the department’s—it has become clear that that is too generalised and must be anchored in existing legislation to which future generations can refer. I therefore welcome the discussion that the Minister had and allowed his officials and Kew officials to have with me so that we could come up with a form of words which I hope meets all the concerns expressed by my noble friend Lord Campbell-Savours and others. There is concern in the community around Kew, in the scientific community and in the minds of those who use Kew for recreational purposes that if we allow any open-ended leases, there will be developer interest, with the disastrous effect that we have seen on other stretches of the Thames applied to this very special piece of ground.

I therefore accept the advice of the lawyers to a large extent and have attempted in my amendments to place restrictions on future leases in terms, on the one hand, of the universal World Heritage Site provisions, which are pretty clear and, on the other, under the National Heritage Act, which includes the six principles under which the trustees of Kew are supposed to operate, to which the noble Viscount, Lord Eccles, referred at earlier stages. That pretty much covers the basis on which we must ensure that restrictions are placed on leases.

The amendments place the obligation on the Secretary of State, who would grant the leases, and therefore on the lessee, who would have to abide by the restrictions required by the Secretary of State. That may not be 100% watertight, but it is much more watertight than the original Bill and, I think, reflects many of the assurances which the Minister has tried to give us today and at earlier stages of the Bill. I think we can move forward with confidence and avoid the kind of intrusion on, and misuse of, the assets and land at Kew that some of us have feared. I beg to move.

[Lord Gardiner of Kimble]

My Lords, I think that it would be helpful to your Lordships if I confirmed that the Government support both amendments.

[Lord True (Con)]

My Lords, I hesitate to intervene, particularly after what my noble friend on the Front Bench said. I assure the House that I will not inflict a Second Reading speech on noble Lords.

I proposed the Bill kindly taken up by the Government, which has become the Kew Gardens (Leases) (No. 3) Bill. Therefore, in some senses, I am a guilty party. I apologise for the fact that, because the Bill was taken up at short notice, I could not be present either at Second Reading or in Committee. Having read the proceedings carefully, I express my thanks to all those noble Lords who have demonstrated their love for Kew and their concern for it and its importance as a world heritage site and a world scientific centre. The words used by Peers on all sides of the House have been wise and shown a duty of care. My noble friend on the Front Bench has been wise in negotiating and listening to come forward with a compromise, which I hope will satisfy the House.

I have been in the two buildings mentioned by my noble friend in the debate on the previous amendment. There is no doubt that they have a better longer-term purpose. Something was said about how people may construe the intentions of Parliament—indeed, those of all concerned. When I had the honour some years ago of being the leader of the local authority, I walked the grounds with Mr Deverell, the truly outstanding director of Kew. We discussed this problem and these propositions, which eventually led to the Bill. With the benefit of those private discussions over a number of years, I can assure the House that never at any stage was any intention expressed, either in private or in public, by those involved with Kew that would lead towards the kind of concerning developments rightly raised by some Members.

With that assurance, added to what I know of Kew’s intentions and the benefits that this Bill could secure for Kew, I will not trespass any further on the House’s patience. I apologise for not being present to support a Bill I proposed in my name and support wholeheartedly. I support the amendment moved by the noble Lord, Lord Whitty. Let us hope that the Bill goes forward and becomes law, to the benefit of this great institution.

--- Later in debate ---

[Lord Gardiner of Kimble]

My Lords, I am most grateful for all noble Lords’ contributions. I am struck that, as is so likely in your Lordships’ House, I am looking at two former Ministers responsible for Kew and behind me on the Government Benches are two former chairmen of Kew. The noble Lord, Lord Campbell-Savours, asked: what is the worst that can happen? We have all worked tremendously hard to ensure that the amendments in the names of the noble Lord, Lord Whitty, and the noble Baroness, Lady Jones of Whitchurch, set out the right position. I am very pleased that the Government support them.

The conditions centre on Kew’s status as a UNESCO world heritage site and the functions of the board of trustees of Kew as set out in primary legislation. I was struck by what the noble Baroness, Lady Kramer, said about the political composition of the London Borough of Richmond upon Thames. Thinking back to the points made by the noble Lord, Lord Campbell-Savours, I cannot imagine any local authority of any political complexion, given all the safeguards I know there are in the borough, allowing this theoretical block of flats getting into any sort of starting stall. The point about the local authority was precisely put. I regret that my noble friend Lord True, who earlier pioneered this Bill, has only now had an opportunity to demonstrate his expertise and experience of Kew and the sorts of properties that the Bill is designed to help remedy in order to provide important resources for Kew.

I share noble Lords’ aim to protect Kew when granting these leases, and I believe that the amendment provides a robust assurance in response to many of the points raised in debate in your Lordships’ House. As I have stated before, the strong and multilayered protections already in place, together with planning permissions appropriately tailored in accordance with listed status, ensure that only development in keeping with Kew Gardens and its status as a UNESCO world heritage site will be permitted.

Office for Environmental Protection

Lord Gardiner of Kimble Excerpts

Wednesday 22nd May 2019 Lords Chamber

[Baroness McIntosh of Pickering]

To ask Her Majesty’s Government when they expect the Office for Environmental Protection to be operational; what its remit will be; and in the interim, which body will ensure compliance with environmental protection legislation and regulations.

[The Parliamentary Under-Secretary of State, Department for Environment, Food and Rural Affairs (Lord Gardiner of Kimble) (Con)]

My Lords, we are planning for the office for environmental protection to be operational from 1 January 2021. The OEP will be an independent statutory organisation established by the environment Bill. It will provide environmental scrutiny and advice, respond to complaints and take enforcement action. If necessary, we are ready with interim arrangements. These will provide an initial assessment of complaints, scrutiny of the 25-year environment plan and ad hoc advice until the OEP is established.

[Baroness McIntosh of Pickering (Con)]

I am grateful to my noble friend for that reply, and I yield to no one in my admiration of his concern for the environment. The Government have committed, in the EU withdrawal Bill being brought forward by the Prime Minister, to enforcing environmental protections but, in the unfortunate position of the United Kingdom leaving the European Union with no deal, we will lose access to the European Commission and the European Court of Justice to enforce the principles of environmental protection to which we have subscribed. Does my noble friend share my sense of urgency about setting up the office for environmental protection before 2021 to ensure that we will have a mechanism in place for enforcing all the principles to which we have subscribed under the EU in the event that we leave with no deal?

[Lord Gardiner of Kimble]

My Lords, that is precisely why we have the interim arrangements and the establishment of a non-statutory secretariat for those circumstances. It would be headed by a distinguished environmental lawyer. All of this is to ensure that, before the operation of the OEP, there is a body up and running and thus ready to take action in terms of the functions that apply directly to central government and public bodies. When the OEP is set up, those functions will be passed on, so there will be no gap in terms of holding government and public bodies to account.

[Baroness Jones of Whitchurch (Lab)]

My Lords, is the Minister concerned about the criticisms made by the Commons EFRA Committee, whose Conservative chair said recently of the draft environment Bill:

“There is also little point in setting up an environmental watchdog if it is unable to fulfil its essential function of holding the government to account”.


Does he recognise that criticism and, if so, what is his department doing to address those shortcomings?

[Lord Gardiner of Kimble]

First, my Lords, perhaps I may wish the noble Baroness a very happy birthday.

[Noble Lords]

Hear, hear!

[Lord Gardiner of Kimble]

I can assure noble Lords that we work closely. The reports of the Environmental Audit Committee, the EFRA Committee and indeed of our own committee have been immensely valuable in responding to the draft environment (principles and governance) Bill. We will be considering the responses as positively as we can, but obviously the most important thing is to ensure that we enhance the environment and that we have the right legislation in place to do that.

[Lord Krebs (CB)]

My Lords, as the Minister will be aware, the two main concerns raised by the Environmental Audit Committee and the EFRA Select Committee in the other place—as well as the EU Energy and Environment Sub-Committee, of which I am a member, in your Lordships’ House—have been about the independence of the OEP and its enforcement powers. I hope the Minister will be able to confirm to the House that, in considering these three Select Committee reports, the Government will take steps to ensure that the OEP is fully independent and has enforcement powers comparable to those currently exercised by the Commission and the ECJ.

[Lord Gardiner of Kimble]

My Lords, I reply in the same vein to the noble Lord. We found the responses of the three committees very helpful. Referring to Clause 12(1) of the draft Bill, I can say that the OEP will set its own work plan independently of government. It is absolutely clear that this body must be independent from Defra. Ministers cannot set its programme of activity or improperly influence its decision-making, and it will be accountable to Parliament. The absolute intention of this is to ensure we have an independent body so that we can all be confident we are enhancing the environment.

[The Lord Bishop of Winchester]

My Lords, a new global review has concluded that the damage to human health from air pollution extends to all organs of the body. Southampton in my diocese is now among the top 20 UK cities already at the pollution-level limit of 10 micrograms per cubic metre. I therefore press the Minister to confirm what responsibility the office for environmental protection will have in holding the Government to account for implementing their commitment to the clean air strategy, which is internationally recognised by the WHO.

--- Later in debate ---

[Lord Gardiner of Kimble]

My Lords, the right reverend Prelate is absolutely right. Air quality and this whole arena will be part of the environment Bill, and it is clear that the improvement of air quality is part of ensuring we have an enhanced environment. Indeed, the Bill will give legal force to our clean air strategy, and we will work to ensure that we continuously improve air quality as part of environmental governance and its principles.

[Baroness Jones of Moulsecoomb (GP)]

My Lords, can I pin the Minister down a little more? When the withdrawal agreement comes before this House, is he prepared to support any amendments that would ensure we have the same enforcement in the future as now?

[Lord Gardiner of Kimble]

My Lords, this is precisely why a rather considerable environment Bill will come before us in the second Session. It is important that all relevant committees have had sight of the draft Bill. Clearly, it will be for the other place and your Lordships to consider whether the provisions are suitable. I believe it is a strong example of the Government’s bona fides in wanting to enhance the environment and having the right principles and governance arrangements on the face of the Bill.

[Baroness Bakewell of Hardington Mandeville (LD)]

My Lords, what mechanisms are the UK Government proposing to put in place, in partnership with the devolved Administrations, to ensure that there is continued co-operation on governance across the UK after exit, including on transboundary issues?

[Lord Gardiner of Kimble]

My Lords, the noble Baroness is absolutely right in inferring that none of these matters respects borders. This is why we want to work collaboratively with the devolved Administrations. We respect the devolution settlements but will clearly work with the devolved Administrations for the very reasons the noble Baroness has set out. It is important that we collaborate on the environment, but it is part of the devolved arrangements. The Bill will relate to all reserved environmental matters and to England.

Kew Gardens (Leases) (No. 3) Bill [HL]

Lord Gardiner of Kimble Excerpts

Committee: 1st sitting (Hansard): House of Lords
Tuesday 21st May 2019 Lords Chamber

[Baroness Jones of Whitchurch (Lab)]

My Lords, we have considerable sympathy with the points made by the noble Lord, Lord Hodgson, and the noble Viscount, Lord Eccles. We have also tabled amendments which are another way of trying to address the same issue. Our concern is that this short Bill puts too much individual power into the Secretary of State’s hands, and we need to make sure that the right checks and balances are in place so that that power is used wisely. We seek to have an external body, such as UNESCO, to oversee the powers being allocated, with the Secretary of State unable to influence what UNESCO is doing. However, I appreciate that the noble Lords are coming at this from a different direction.

The point of the noble Lord, Lord Hodgson, was well made: it is not about now but about the future, about other times and places when other players will be in post, and we need to make sure that they exercise their responsibility wisely. Whatever statements were made about the current Secretary of State, this is about future Secretaries of State and indeed future members of the board, and the need to make sure that they have the correct relationship.

This is also about different circumstances. The noble Viscount, Lord Eccles, said that people juggle with choices, and that is absolutely right. They will always be under pressure and there will always be a shortage of money, so we need to make sure that the financial demands on the shoulders of the individuals concerned do not lead them to make short-term choices which would damage Kew in any way. I therefore have considerable sympathy with the amendment; I am interested to know how the Minister will respond to this and thank the noble Lord for raising this issue.

[The Parliamentary Under-Secretary of State, Department for Environment, Food and Rural Affairs (Lord Gardiner of Kimble) (Con)]

My Lords, I am most grateful to noble Lords, particularly my noble friends. The amendment seeks to apply consultation by the Charity Commission to the actions of Defra and RBG Kew, which, I should say, is a charity specifically exempt from direct regulation by the Charity Commission under Section 22 of and Schedule 3 to the Charities Act 2011.

I say this with passion: there is very little difference between what we are trying to achieve in protecting Kew when granting these leases and what we are trying to achieve for future generations, whoever has responsibility for these matters. The Bill does not affect any of the high protections already afforded to Kew; it is about changing a figure of 31 to 150. All the protections will continue to apply. I absolutely understand my noble friend Lord Hodgson’s point, and that of my noble friend Lord Eccles, who has great experience in this field; their intention clearly is not to attack the Bill or Kew—quite the reverse. It is in everyone’s interest to look after Kew.

I need to set out something by way of legal advice on the amendment; I received the advice from senior departmental government lawyers and counsel.

--- Later in debate ---

[Lord Gardiner of Kimble]

I was coming to that. Let me be clear: Kew will focus on the seven residential properties on Kew Green. Kew has no immediate plans beyond the proposals for those properties. Obviously, the Bill does not stop future plans for any other property on the non-core estate, but Kew wants to ensure that the seven residential properties on Kew Green do not continue in their current unsatisfactory condition. The Bill is about maintenance of the non-core estate, and the whole basis of what we are doing is to enable those parts of the non-core estate not required by Kew—

[Viscount Eccles]

I am sorry to interrupt my noble friend. He has used the phrase “non-core” three times. How does he define that? Until you define your attitude to the six general functions in some detail, you cannot come to a judgment on what is core and what is not. Some properties on Kew Green are occupied by the Royal Botanic Gardens, Kew. Some of them, such as Cambridge Cottage, are historic. If I may say so, we must not get carried away with the idea that what is core and what is non-core is obvious. It is not at all obvious at Kew, which is a very complicated institution. What is core and non-core changes with fashion. Now, Extinction Rebellion is changing things too.

[Lord Gardiner of Kimble]

It would be more helpful if I could develop my arguments. It is important that I set out the legal point. My noble friend Lord Eccles is right that I should perhaps get a better legal definition of “non-core”. I am trying to explain, in what I would call lay language, that Kew has recognised that these properties on Kew Green are not required for the fulfilment of its functions, as set out in the National Heritage Act. Here, we are seeking to enable Kew to use the additional income to meet the challenges that I know my noble friend Lord Eccles had to resolve when he was chairman, as will the current and future chairs. I like his point, which is how in these difficult times we can invest more proactively in Kew.

[Baroness Kramer (LD)]

My Lords—

[Lord Gardiner of Kimble]

I would like to make some progress.

[Baroness Kramer]

Perhaps I may just ask the Minister a question purely for clarification. I am not the slightest bit fussed about the seven houses on Kew Green as they are all under conservation orders and the local council will certainly be able to prevent any inappropriate development. We can also count on the fact that, no matter what the political colour of the council, the residents will make sure that that happens. What I am trying to understand is what else might be non-core. Does that include the parking area, or is it part of the non-core estate? Is that where we should be focusing our general concern?

[Lord Gardiner of Kimble]

As I say, it goes back to those areas. I want to pin down this point. This is absolutely not about suddenly cherry-picking: “That looks like a nice site; that would be quite lucrative”. It is about enabling longer leases to ensure that there is more money for Kew to do these things. Part of the issue, shall we say, is accessibility for the public, whether that be parking or other general facilities. Yes, such things are part of enabling scientific endeavour, but they also enable the nation to appreciate what Kew does by way of visiting the gardens.

[Lord Campbell-Savours (Lab)]

My Lords, could non-core—

[Lord Gardiner of Kimble]

I am sorry, but would it not be easier for me to develop the argument, because much of this will I hope be covered? I think that that would be more constructive.

I want to go back to the advice I have received, because my response to my noble friends and the amendment hinges on that. These leases of the land at Kew are not regulated by the Charities Act 2011 as the land is Crown land, so in its current form the amendment is not an appropriate safeguard. Kew Gardens is land held by the monarch in the right of the Crown and is Crown land currently managed by the board of trustees and Defra. The board was established under Section 23 of the National Heritage Act 1983. While that Act gave the board a power to purchase land and other powers to deal with land that it purchased, it did not transfer title of the land at Kew Gardens to the board, nor did it give the board any powers of management over the land at Kew.

In granting leases on the land at Kew Gardens, the Secretary of State will act as the freeholder on behalf of the Crown. The Bill does not create the power to grant a lease, merely to make a longer one. Since title is not held by the charity RBG Kew, these leases will not be regulated directly through charity law. It is not the intention of the Charities Act 2011 that the Charity Commission will be consulted on the management of Crown land as it relates only to the disposal of property that is in the title of a charity, which the Crown land at Kew is not. As I say, having taken counsel’s advice, it is important that I say this.

The Secretary of State, in exercising his powers of management of the land at Kew, balances the freedoms to manage Crown land free of any restrictions. Parliament’s intention was that the land should now be occupied by Kew for use in furtherance of its general functions under Section 24 of the National Heritage Act. However, in reality proposals will be initiated by Kew and in making the decision to support the grant of a lease, the trustees would act in the best interests of Kew, in line with the National Heritage Act and pursuant to the framework agreement between Kew and Defra. That agreement was laid before both Houses of Parliament last year, and I will circulate the framework document to my noble friend Lord Eccles and indeed to all noble Lords who have spoken in this debate.

[Lord Campbell-Savours]

Could I just clarify something? Does non-core land include land on which planning permission can be secured to build new residential developments?

[Lord Gardiner of Kimble]

All land within Kew and the Crown land, including non-core land—I used that unofficial language, shall we say, to describe the sorts of properties for which Kew recognises that it would wish to avail itself of this legislation—is subject to many protections. I digress slightly from these leases, but for instance if Kew, in its scientific endeavour, wanted to build a new science block or something to enable it to be ever more proactive, as my noble friend Lord Eccles said, given that this is a world heritage site with many listed buildings it would have to be in sympathy with all that. I perhaps wish I had not described it as “non-core land”, but it was a genuine attempt to distinguish between the estate—where all the functions of the National Heritage Act are undertaken, and those functions are set out in statute—and land and property, such as the seven residential buildings, that Kew does not feel it requires for its core functions and that would clearly require the protections I will unfold not only in this amendment but in others. All land that is going to be subject to this legislation has many protections.

[Lord Campbell-Savours]

I understand that, but I want to press this. Could a developer, to put it bluntly, build a block of flats on the non-core land, subject to the protections?

[Lord Gardiner of Kimble]

No. On the land under question, one of the seven residential buildings is not listed and all the rest are. On a later amendment I will go into some detail on the conditions that there would be on the leases, because that is probably where I can explain it better. In the leases there are standard conditions and those that recognise the world heritage site, the listed nature and all those things, so any proposal by anyone would have to go through all those hoops. If the noble Lord is asking me what would happen if someone came along and said, “I would like to build some modern flats in the place of those listed buildings”, I cannot see—I am happy to put this on record—the local authority agreeing to it, anyone saying that this was the proper function, or the Secretary of State granting a lease.

[Lord Campbell-Savours]

But he could.

[Lord Gardiner of Kimble]

The protections are available for ever to ensure that this would not be the case.

[Lord Campbell-Savours]

But it cannot be ruled out.

[Lord Gardiner of Kimble]

I think it can be ruled out, because the protections are absolutely, fully in place for the land at Kew, whether the seven residential properties—

[Lord Campbell-Savours]

Forget those.

[Lord Gardiner of Kimble]

I am not forgetting those, because they are the areas being dealt with. I am going to make more progress; I am happy to continue these considerations outside Committee.

One thing is clear: if a lease was at odds with anything, the Secretary of State would decline to grant it in the first place. With this in mind, and on the advice of departmental lawyers, the Secretary of State would not grant a lease that was in any way contrary to Kew’s objectives as set out in the National Heritage Act 1983, the governance document of Kew Gardens dated July 2017, and the Kew framework document dated June 2018, since this would risk placing the board in breach of its own statutory obligations and the framework and governance documents. For example, no lease of any land or building could ever restrict public access to the plants, collections and other facilities at Kew as this would be contrary to Section 24 of the National Heritage Act 1983.

--- Later in debate ---

[Lord Hodgson of Astley Abbotts]

My Lords, my noble friend the Minister has been extremely courteous and accepted interventions from all sides of the House, which is very good of him. He may be regretting the briefing he provided for us before Second Reading, at which he was unwise enough to say, “I hope some of you are going to take an interest in this Bill and we get enough speakers”. He may have put his head into the lion’s mouth there.

I thank my noble friend Lord Eccles, who brings a wealth of experience and insight to this and brought out the difficult balances that are to be struck—no one is suggesting that what we are trying to tackle is easy. To the noble Baroness, Lady Bakewell, I say that of course we understand that Kew needs the money; but we need to make sure there are appropriate checks and balances and that we are not chasing the money too much. I am grateful to the noble Baroness, Lady Jones, for her general support.

My noble friend made three important points. First, he said that the focus is on seven residential properties but there are no immediate plans to go beyond that. That is a careful set of words. Secondly, he was very careful and courteous also in dealing with the “core” and “non-core” point, brought up by my noble friend Lord Eccles.

Finally, as I understand it, the legal advice is that this amendment does not have effect because the Crown land has no link with a charity and therefore with the Charity Commission. I am therefore not quite sure why the department needs to sign an MoU to ensure compliance with charity law because if it was just—

[Lord Gardiner of Kimble]

This is because the MoU relates to the plants, collections and functions, not to the land.

[Lord Hodgson of Astley Abbotts]

That is very helpful. So the MoU is narrowly drawn in that sense. I am grateful for that. I want to make sure that somewhere in this legislation we know how big a set of opportunities we are offering Kew and make sure that there are no unnecessary opportunities for side deals which may release funds for Kew in the short term in a way that does not deal with its long-term objectives, which we all support. We will carry on the discussion. In the meantime, I beg leave to withdraw the amendment.

--- Later in debate ---

[Lord Campbell-Savours]

My Lords, I shall intervene only briefly. I sense that the Minister has difficulty in mouthing the words that residential property development could be considered on that site, not now but perhaps in 20 or 30 years’ time when there is a lot of pressure. I understand that, under residential development for flats, that land would probably fetch in the region of £1,500 per square foot. That provides some fairly expensive property. There will be people who, under pressure and needing funds, might take a chance and put in for a development, perhaps on the car park that was just referred to. I support the amendment suggested by my noble friend. In the event that it is rejected at this stage, I might come back at a later stage to see how the legislation, whose subtext is residential development in the long term, can be interfered with and greater restraints than currently exist introduced.

[Lord Gardiner of Kimble]

My Lords, I say from the outset that I take the amendment in the name of the noble Lord, Lord Whitty, with the seriousness that I know he takes Kew. I also recognise the direct knowledge of the noble Baronesses, Lady Tonge and Lady Kramer, down to the last tree in the car park, which is probably the one that unfortunately has had most bonnets interfere with it. I understand the local and historical knowledge of the former Minister and the desire of the noble Baroness, Lady Jones of Whitchurch, for protections. My noble friend Lord Eccles is a former chairman of Kew. The noble Baroness, Lady Warwick, talked about reputational damage and the noble Lord, Lord Campbell-Savours, talked about how we ensure that the Bill, which is laudable in so many senses, gives protection for ever. The whole basis of why I am seeking consent for the Bill is to help Kew. I absolutely recognise that your Lordships all want to help it too.

I am, therefore, grateful to the noble Lord for his amendment and for the clear indication that your Lordships regard Kew in the same light as I do, as the Minister with day-to-day responsibility for it. This is an establishment of unique value and an institution worthy of the highest protection. I was interested in what the noble Baroness, Lady Tonge, said about children. I was fortunate enough to go to one of the early openings of the children’s garden last week. I did not detect commercialism there; I saw a lot of children running around enjoying plants and understanding more about them. Taking off the rose-tinted spectacles of previous times, families have changed. We have all changed, as have the sorts of things that engaged us. I am afraid I did jump on a trampoline—it was a very small one. There are all sorts of things we can do to engage children. My analysis of the children’s garden and its design is that it gets children engaged. I want children from all backgrounds to think, “I want a life in plants; I want to come to Kew as a scientist; I want to work for Kew”. Those are my ambitions for Kew’s reach to local communities and beyond. I have teased this out myself, because I clearly want Kew to be protected forever. I am grateful for the opportunity to set out the restrictions.

First, as a UNESCO world heritage site and conservation area with 44 listed buildings, Kew Gardens is subject to some of the highest level of scrutiny and statutory approvals available under the planning system —as it should be, of course—and this will not change under the Bill. Regardless of any additional conditions that might be placed on the lease by the Secretary of State, any significant internal or external developments under the lease, whether structural or otherwise, would be subject to the relevant development permissions. The local planning authority, with advice from Historic England, in particular, would be responsible for deciding whether a proposed development should be allowed to go ahead and whether to grant planning permission for new buildings, major alterations, including any to listed buildings, or significant changes to the use of a building or piece of land. The Bill will not change or replace this governance process.

I hope it will be helpful to your Lordships to set out in detail the separate planning controls that protect Kew’s unique heritage. The Planning (Listed Buildings and Conservation Areas) Act 1990 is the legislative basis for decision-making on applications that relate to the historical environment. Sections 66 and 72 of the Act impose a statutory duty on local planning authorities to consider the impact of proposals on listed buildings and conservation areas. This is particularly relevant to the Royal Botanic Gardens and the Kew Green conservation areas, as well as the many listed buildings in the Kew UNESCO world heritage site that contribute to its outstanding universal value.

The National Planning Policy Framework, the NPPF, sets out the Government’s planning policies and how they are expected to be applied, dealing particularly with the historical environment. The Government’s national planning practice guidance gives further information on how national policy is to be interpreted and applied locally. As the relevant local planning authority, the London Borough of Richmond would apply the policies of the NPPF to its local plan, setting out policies for making planning decisions in its area, including those covering historic buildings and conservation areas. The local planning authority is advised by Historic England on all aspects of the historical environment, and by the Greater London Archaeology Advisory Service on all archaeological matters.

The NPPF provides clear direction for planning authorities on the determination of applications affecting designated and non-designated heritage assets. The framework recognises that UNESCO world heritage sites are of the highest significance and that great weight must be given to the conservation of their significance and their setting. It says:

“Heritage assets range from sites and buildings of local historic value to those of the highest significance, such as World Heritage Sites which are internationally recognised to be of Outstanding Universal Value. These assets are an irreplaceable resource, and should be conserved in a manner appropriate to their significance, so that they can be enjoyed for their contribution to the quality of life of existing and future generations”.


The framework also provides for key policy tests for developments that would harm the significance of designated assets, including world heritage sites.

I hope noble Lords can see that these sections clearly set out the importance of a world heritage site and the local planning authority’s duty to ensure that the greatest level of consideration and protection is applied when implementing national, London-wide and local planning policy. Kew Gardens is also located in a conservation area, a designation that ensures that extra planning controls and considerations are put in place. Any significant alterations to buildings or new developments would result in further scrutiny from the local planning authority as a result. Further, 44 of the buildings and structures on the Kew Gardens site are listed, acknowledging their special architectural or historic interest. This designation regime is set out in the Planning (Listed Buildings and Conservation Areas) Act 1990 and the list is maintained by Historic England. Any works to alter, extend or demolish Kew Gardens’ listed buildings would require listed building consent from the local planning authority and Historic England, whether planning permission is needed or not. Listed status covers the entire building, internal and external. It is a legal offence to carry out works to a listed building without permission. The Bill will not alter this.

As I have mentioned, any development on a world heritage site or its settings, including any buffer zones, should conserve, promote, make sustainable use of and enhance its authenticity, integrity, significance and outstanding universal value. In particular, it should not compromise a viewer’s ability to appreciate its outstanding universal value, integrity, authenticity or significance.

--- Later in debate ---

[Baroness Kramer]

Can the Minister tell us—clearly not now—what the status is of that car park land? It sits outside the wall of Kew Gardens, so I am not sure how far it is covered by any of the protections he has mentioned, even though it is the obvious site if you were going to have a commercial development. It would be extremely helpful to know what the protection is there.

[Lord Gardiner of Kimble]

I referred to buffer zones. This is an issue for Kew in terms of how planning proposals beyond the curtilage of Kew Gardens may, in turn, impose upon the world heritage site. I will write to the noble Baroness about the precise element of the car parks, but they are all part of Crown land, which is part of—ah, the noble Baroness is signalling that that may not be the case. May I come back to the noble Baroness on the question of that car park?

In conclusion, it is important to note that the Bill will not supersede the application of any existing legislation or policy already in place. This includes any proposals for new build or changes to the use of buildings, including on the wider estate. I mention that because Kew is a proactive scientific institution and therefore it is inevitable that, in protecting Kew and its wonderful historic site, we will have to have future state of the art scientific buildings with laboratories to help us find solutions to protect our natural ecosystem. So I deliberately raise the fact that, in protecting Kew, we will need new contemporary buildings to assist it in advancing scientific knowledge. I want to protect this great, historic site, and I am sure that it is our objective to entrench that for ever.

I repeat that I have looked at this in great detail and I cannot think of anywhere that has more protected elements, with so many varied facets, than Kew. So I say to the noble Lord, and to all noble Lords, that obviously I am in tune with what they want from this. I would like to continue discussions with the noble Lord, Lord Whitty, and other noble Lords, because I want to get this right. However, in the meantime, I ask the noble Lord to withdraw his amendment.

[Lord Whitty]

My Lords, I thank the Minister for that, and I thank all noble Lords who have supported the intent of the amendment. The Minister clearly spelled out the number of protections that currently apply in different statutes and regulations. I concede that they make Kew probably one of the most protected acreages in the world. Nevertheless, I think I am right in saying that none of the protections existed 150 years ago—and not all of them existed 31 years ago. Therefore, we cannot be sure that they will exist in 31 years or 150 years—yet the leases will have been granted when the Bill becomes an Act.

I am grateful for the Minister’s offer to discuss this further. I understand about all the protections, but they could all change—and, even if they do not, issues could still be raised. I am mindful of another UNESCO world heritage site: the Liverpool waterfront. A building adjacent to it has raised serious questions. I think that in the end UNESCO accepted that it did not offend the status of the site. However, looking at it as a lay person, one might think that it came dangerously close. If a similar building were put on the Kew car park—although I suspect the protections would stop it—it would challenge a lot of what Kew stands for and what it looks like.

I am not suggesting that we should preserve Kew in aspic. I recognise, as the Minister has just said, that new buildings and new facilities will be needed to keep up with the scientific and educational activities of Kew—of course that will happen. But my amendment allows for supportive and compatible development, and we must make sure that the outcome of such development is compatible with and supportive of the general objectives of Kew.

I am disappointed that the Minister did not offer to draft a rather better government amendment for Report. However, I look forward to discussing this with him to see whether perhaps he could go some way down that road. In the meantime, I reserve the right to bring this back should that development not pertain. I thank all noble Lords who participated in the debate and I beg leave to withdraw the amendment.

--- Later in debate ---

[Baroness Bakewell of Hardington Mandeville]

My Lords, transparency is really important, but I am concerned that a set of accounts should be produced just for the income from the leases on seven properties. That seems quite bureaucratic to me. I accept that the noble Baroness said that this was a probing amendment, so I will be interested in what the Minister has to say. I would have thought that these accounts could have been incorporated into the consolidated Kew accounts, rather than being a separate set. That would be a better way of doing it.

[Lord Gardiner of Kimble]

My Lords, I agree with the noble Baronesses that we should always be transparent. I hope that I will satisfactorily be able to explain why I think that these matters are covered.

First, pursuant to the National Heritage Act, a statement of accounts in respect of each financial year for Kew is prepared, examined and certified. A report on this statement is produced by the Comptroller and Auditor-General as head of the National Audit Office and laid before each House. Details of Kew’s income, including government, commercial and charitable donations, are all set out in this report, which is a public document.

I reassure the noble Baroness, Lady Jones of Whitchurch, that income received by Kew in respect of these leases, subject to this Bill, will also be reflected in this report. In addition, Kew itself publishes audited annual reports and accounts. These state how much grant in aid it receives each year from Defra and how much is restricted to specific projects. Within this report, Kew will report on funds from the lease income as part of its funding note.

--- Later in debate ---

[Lord Hodgson of Astley Abbotts]

Following on slightly from the point made by the noble Lord, Lord Campbell-Savours, can the Minister address the nature of the leases? These will presumably be repairing and insuring leases, in the sense that at the end of the term of the lease Kew will want the property back in the state in which the lease was granted. It would be worth while if my noble friend could confirm that, either now or in writing later.

The one amendment in this group with which I have particular sympathy is Amendment 7. This seems to provide a way to get some of the answers to the questions posed by my noble friend Lord Eccles about core and non-core land and to the wider concerns in the House about whether this is a one-shot deal or whether there is—as the noble Lord, Lord Campbell-Savours, just said—around the periphery of the properties a whole series of small plots of land that might at one time or another be envisaged as falling under the provisions of this Bill. Some work on Amendment 7 could provide some answers and reassurance to those of us concerned at the nibbling away that might take place over a period of time in circumstances that are hard to foresee now.

[Lord Gardiner of Kimble]

My Lords, I am most grateful to the noble Baroness for tabling these amendments. Without going on for too long, I should like to take the opportunity to place on record a number of points.

Amendment 5 seeks to require the Secretary of State to publish, within a month of the Act being passed, an impact assessment covering any property that could be involved in these leases and any related financial liabilities and income projections. I understand that the aim of the amendment is to ensure public transparency on the scope and impacts of the leases that may be enabled under the Bill. I am most grateful to the noble Baroness for allowing me to put on record the detail already published in Kew’s annual report and accounts, which includes the valuations set for Kew’s heritage assets of land, buildings and dwellings, as well as those assets under restoration.

Kew has already estimated the value to Kew of the properties affected. I understand that the £40 million was in 2015. Since then, the assessment is that the value of leases and avoided renovation costs in the short term would be up to £15 million. This estimate is based on the seven residential leases, of which two are currently unoccupied properties that require substantial renovation. This means that there cannot be any more quantified projections other than those that Kew has given at this time.

The need to scrutinise the impacts of lease proposals will be fulfilled by Kew in taking specialist advice and preparing proposals for consideration by, first, its executive board and board of trustees and, ultimately, the Secretary of State. This includes the involvement of Kew’s finance committee, audit and risk committee and capital development committee, as well as Defra. As I have said, and as we have all realised, Kew will focus on the seven residential properties currently let on assured shorthold tenancies or empty. As I have said, Kew has no immediate plans beyond that.

I find it really rather alarming that everyone is determined that dreadful things can happen. The noble Lord, Lord Whitty, has already said that this is one of the most protected sites in the country. No Parliament can bind its successors. All we can do is use our best endeavours now, with the protections that are there in legislation. I am looking at the noble Lord, Lord Campbell-Savours. If a Parliament decided to amend the National Heritage Act in an adverse way, of course we would regret it, but it is for future Parliaments to decide those matters. What we can deal with today is having all the protections we possibly can. I have sympathy with all that the noble Lord, Lord Whitty, is seeking, but it is on record—even from the noble Lord—that this is the most protected part of the kingdom.

The development of all aspects of the Kew estate will remain subject to the approval of its board of trustees and in line with Kew’s world heritage site management plan, just as any shorter-term leases already would. Although I fully endorse the desire for meaningful transparency in these leases and the motivation behind the amendment from the noble Baroness, the degree of variation means that it would be best served through Kew’s existing proposals and commitments. Indeed, the lease would be publicly available at the Land Registry when the sale completes.

It is the view of my department that this amendment would risk providing information that would not be precise. Of course, it is subject to market conditions. In addition, the Secretary of State has to follow the guidance in Managing Public Money, formerly the Treasury Green Book, which requires value-for-money assessments.

The noble Baroness, Lady Bakewell, referring to Amendment 6, made some important points about the local planning authority. I understand and share the wish of the noble Baroness, Lady Jones of Whitchurch, that any refurbishment or development should require the correct approval so that it does not compromise the property—which is Crown land—the world heritage site or Kew’s functions and activities in any way.

Kew’s activities, including any lease under the Bill’s provisions, are overseen by Kew’s board and the Secretary of State. The discussions and negotiations about leases would be initiated by Kew in accordance with its governance. This includes the trustees’ code of best practice, the National Heritage Act 1983 and the framework document between Kew and Defra. The lease itself would be prepared for and on behalf of the Secretary of State using specialist property lawyers and specialist commercial advice.

There will be numerous bespoke conditions in the lease agreement itself that shall offer the appropriate and relevant protection to Kew under this amendment. As I shall detail, these would deal with the unique nature of the land at Kew and, in particular, the listed buildings on Kew Green and, in doing so, provide complete protection for the Secretary of State and Kew.

As well as conditions bespoke to Kew, which I shall turn to in a moment, the usual lease conditions would apply. The usual leaseholder covenants include obligations not to do anything that contravenes planning; to comply with any estate regulations that may be drawn up; not to make any alterations to any part of the internal or external structure of premises without freeholder consent; to submit plans to the freeholder if consent for alteration is required; not to sublet or transfer premises without freeholder consent; not to interfere with or obstruct the performance of a freeholder in carrying out its duties; not to use the property for anything other than the use specified in the lease; not to access the property other than as specified in the lease; and not to cause a nuisance from the property. In addition, I assure your Lordships that all Kew leases will expressly include a leaseholder obligation not to do, or allow to be done, anything that will bring into disrepute the Royal Botanic Gardens, Kew, including its status as a world heritage site or the listed building status of any house, for example.

Some of the houses will contain features typical of buildings of this age, such as plasterwork ceilings and cornicing. Given their listed building status, features such as these may not be altered, so any lease would provide that such features must be preserved and may not be damaged in any way. As the noble Baroness, Lady Bakewell, said, the local planning authority, advised by Historic England, is responsible for deciding whether a proposed development, or even internal renovation, should be allowed to go ahead.

I hope I can also reassure your Lordships that the Secretary of State would absolutely not grant a lease without the recommendation of the Kew trustees. The Secretary of State would take advice from specialist property lawyers as to the appropriate level of protection given Kew’s listed building status and the world heritage site. Therefore, I believe that robust procedures are already in place to ensure that the correct approvals are made. I am as concerned as anyone that none of these buildings be refurbished insensitively, but the terms of any standard lease, bolstered by special conditions for Kew and alongside the governance that the local planning authorities, Kew trustees and the Secretary of State provide, ensure that the points in the noble Baroness’s amendment are already covered.

Turning to Amendment 7, I am again grateful to the noble Baroness for the opportunity to clarify the criteria that would apply. Instead of taking three months, I hope I am able to put on record now these points. I re-emphasise that Kew’s current proposals extend to only seven properties, two of which are unoccupied and none of which is part of the core estate. These leases are being pursued to free up vital revenue for Kew, and will do so with no impact on Kew’s core functions. I am pleased to reassure your Lordships that these criteria derive from the various protections already in place, which I have strongly emphasised. It is, however, absolutely right that the noble Baroness, Lady Jones of Whitchurch, referred to respecting the property, because that is exactly what we must do.

To preserve the protection of the property and Kew’s functions, obligations on the leaseholders would include the following requirements, which I will place on record in the context of Amendments 7 and 8: to repair and keep the property in good condition and decoration; to allow Defra or Kew to access the property to carry out any necessary works; to make good any damage caused by the leaseholder to the property or to the Kew estate; not to do, or allow to be done, anything that will bring RBG Kew into disrepute, including its status as a world heritage site; to comply with the provisions of any statute, statutory instrument, order, rule or regulation, and of any order, direction or requirement made or given by any planning authority or the appropriate Minister or court; not to alter any of the property internally or externally without the express written consent of Kew’s board of trustees and the Secretary of State; not to sublet any of the property without the Secretary of State’s consent; not to assign, transfer or sell their interest in the property without the Secretary of State’s consent; not to interfere with or obstruct the performance of the duties of the Secretary of State, or Kew by way of servant; not to use the property for anything other than the use specified in the lease; not to access the property other than as specified in the lease; not to leave the property unoccupied for a certain period of time; and, finally, not to cause a nuisance from the property. I want to be very clear that there has been proper consideration of this in reference to, as my noble friend Lord Hodgson said, the status and condition of the property.

The noble Baroness was right to raise also the issue of forfeiture. The right to forfeiture occurs when the leaseholder under a lease breaches an obligation contained within a lease. What these obligations may be are a routine part of lease agreements, and so are the conditions for termination of the lease—I have already placed these on the record—as to obligations that will ultimately result in forfeiture if breached under a Kew lease. As I said, the lease agreement itself will be drawn up by specialist property lawyers acting on behalf of the Secretary of State to reflect the various considerations and protections that need to apply in respect of the property itself, the world heritage site and Kew’s functions and activities. I should stress that lease agreements will need to be, and shall be, drawn up and agreed on a case-by-case basis by specialist property lawyers, even though they will have most conditions in common.

Forfeiture of a business lease and forfeiture of a residential property are not the same. This Bill does not seek to disapply any protection a leaseholder may have from unlawful eviction. The forfeiture clause in a lease cannot be one size fits all, since the court looks very seriously at any possession claim, and it is a complicated area of law. This does not, however, negate the fact that breach of leaseholder covenants under leases created by this Bill—such as an obligation to keep in good repair—can and will, if appropriate and if sanctioned by the courts following sufficiently serious breaches, result in the Secretary of State taking back possession of the property.

Japanese Knotweed

Lord Gardiner of Kimble Excerpts

Thursday 16th May 2019 Lords Chamber

[Lord Greaves]

To ask Her Majesty’s Government what recent steps they have taken to eradicate Japanese knotweed.

[The Parliamentary Under-Secretary of State, Department for Environment, Food and Rural Affairs (Lord Gardiner of Kimble) (Con)]

My Lords, we are trialling biocontrol methods to control Japanese knotweed. The Centre for Agriculture and Bioscience International is working to establish the highly specific psyllid, Aphalara itadori, into the United Kingdom. This summer, a population of a more climatically suitable psyllid from Japan will be brought here. It is hoped that this will be the key to unlocking the potential of this agent to reduce the effort and cost of managing Japanese knotweed and its invasive capacity.

[Lord Greaves (LD)]

My Lords, it is 30 years since Lady Sharples started asking questions about Japanese knotweed, and about 12 or 15 since I joined her, but all we get is the same answer every time: that this wonderful psyllid, Aphalara, will come galloping over the horizon and solve everything. It is absolutely clear that the problem of Japanese knotweed is getting worse and worse and causing more and more problems, and it is simply not being tackled. Do the Government agree that two things need doing? First, owners of land need to be put under a legal obligation to eradicate Japanese knotweed, and allowing it to grow should be an offence. Secondly, when transactions or contracts are made relating to land that has Japanese knotweed on it, or when people walk on it and may spread it, they should be notified that this dreadful, awful weed exists or has recently existed on that land.

[Lord Gardiner of Kimble]

My Lords, trials often take longer than we wish, but I assure the noble Lord that we are collaborating with Canada, because it has a similar problem, and with experts across Europe and the United States. I agree: it is frustrating that the psyllid has not established as we wished. We are working on another form of control, which is also under evaluation: a mycoherbicide. This is all part of using the science. I agree with the noble Lord that it is very invasive. That is why I will read some of the advice in the Science and Technology Committee report that came out this morning. We need to attend to this. The problem with the noble Lord’s first point is that, if someone fly-tips spoil with elements of Japanese knotweed, will the landowner really be required to remove that fly-tip? That is the problem if you make it a legal liability on the landowner to remove it.

[Lord Tebbit (Con)]

My Lords, could my noble friend have a word or two with the highways agency? It has recently been spraying all over the place to kill insects. The effects of that are rather dubious, apart from keeping our car windscreens rather cleaner. But there is knotweed, and other noxious weeds which are surely covered by the Weeds Act, all the way along the sides of our motorways. Why not get it to do something?

[Lord Gardiner of Kimble]

We are strongly of the view that we need to look after our pollinators and insects, so we should not cut verges unless it is necessary for safety. This is certainly an issue I will take up with my Department for Transport colleagues, but I know that both Highways England and Network Rail are conscious of their responsibilities. Indeed, there have been cases in which Network Rail has been required to attend to Japanese knotweed. This is a real problem, and I encourage landowners to attend to it.

[Lord Clark of Windermere (Lab)]

My Lords, we are all indebted to the noble Lord for continuing to raise this issue. It is very serious, and many thousands of people have difficulty selling their houses because of the existence of Japanese knotweed. We all hope the bio approach works, but it will take several years. The Government cannot deal with it; it remains with the local authorities to handle it. Can they step up their efforts and advice on the herbicide approach to tackle the problem today and fill the gap before the bio approach comes in?

[Lord Gardiner of Kimble]

The noble Lord raises something really important. A very good practice manual has been published as part of a RAPID LIFE project, showing the varying ways in which this can be dealt with. They all have their issues because of the rhizome’s ability to continue, even dormant, for 20 years. Glyphosate, properly used by trained people—I emphasise “properly”—can kill Japanese knotweed in about two or three years. Biocontrol would obviously be preferable for reducing the aggressiveness of the growth, but there is a whole range of issues. I am happy to share the manual with the noble Lord.

[The Earl of Kinnoull (CB)]

My Lords, I draw attention to my interests in the register. Of course, knotweed is not the only invasive alien species around. This is Invasive Species Week; indeed, the Minister has been seen in the newspapers digging up skunk cabbages. Can he confirm that the Government are intensifying their efforts to combat invasive alien species in general, and in particular the grey squirrel, which is doing so much, so distressingly, to kill our broad-leaf trees?

--- Later in debate ---

[Lord Gardiner of Kimble]

My Lords, it is indeed Invasive Species Week, and I would very much have enjoyed it if your Lordships had been with me in a ditch in Kent digging up American skunk cabbage. This is being undertaken by volunteers working in local action groups. Anyone who googles “Invasive Species Week” will find all the places they can go to help and work with the teams. Grey squirrels are one of the reasons people are not planting trees. If we do not find ways of controlling the grey squirrel, we will not have the treescape for future generations. That is why we think the investment in fertility research—I know the noble Earl has been working hard on this—that will make the grey squirrel infertile has a lot of prospects and will be a way of helping to control this very invasive species.

Brexit: Plant and Animal Biosecurity

Lord Gardiner of Kimble Excerpts

Wednesday 15th May 2019 Lords Chamber

[The Parliamentary Under-Secretary of State, Department for Environment, Food and Rural Affairs (Lord Gardiner of Kimble) (Con)]

My Lords, the noble Lord, Lord Grantchester, is right in his final remarks. I promise that I will write more fully because, given the force of argument in this debate, it will not be possible to adequately answer all of the questions in the time I am permitted. I declare my farming interests as set out in the register. I am grateful to the noble Lord, Lord Teverson, and all committee members because this is a valuable report.

It is appropriate that this debate takes place during Invasive Species Week. Yesterday I was in a ditch in Kent with volunteers digging up American skunk cabbage. I was delighted to be speaking alongside the noble Lord, Lord Teverson, at the Wildlife and Countryside Link panel on invasive species.

My noble friend Lord Selkirk referred to the overseas territories. The hope factor is important in all of these issues, which I take seriously. On South Georgia, the eradication of the rat has now made that island as pristine as it was before Europeans arrived there, and the pintails and the pipets are back in rapid profusion.

The Government welcome this report. I am the Minister for Rural Affairs and Biosecurity, and having a Minister with responsibility for biosecurity is not only daunting but essential. As has been said, plant and animal pests, diseases and invasive species pose a considerable threat to our country’s environment and economy and it is important that UK biosecurity involves the co-operation and collaboration of our friends and partners on the continent.

The Government agree with all the observations on the need to maintain high standards of biosecurity and, yes—the noble Lord, Lord Teverson, made a pragmatic reference to this—we also want to improve upon them. I am not satisfied that we should just be seeking to maintain. We need to consider these matters. The noble Lord, Lord Trees, referred to ash dieback and to what we did then. The lessons we have learned include the appointment of an outstanding Chief Plant Health Officer because we got things seriously wrong.

International co-operation is important. The eastern counties of England have got it naturally, because the fungal spores have not travelled far enough. My noble friend the Duke of Montrose mentioned that New Zealand and Australia are biosecurity conscious—we permitted far too many invasive species into those countries following our arrival—but biosecurity is much more straightforward when you have enormous oceans between countries. There are undoubtedly lessons to be learned, but there are proximity issues, and that is why we need to work so closely together.

Much of our biosecurity legislation is underpinned by EU regulations covering all these issues. We have made clear our intention to bring back all relevant aspects of EU law—many noble Lords have been involved in this—so that we have fully operable legislation to protect our biosecurity. Indeed, since the report was published, I think the vast majority of all the statutory instruments required have been laid and will come into force when we leave.

On 9 April, the European Commission called a meeting of the relevant committee—SCoPAFF—to consider the UK’s third-country listing application and made it clear that it required all relevant animal health legislation to be in place by that date. I am very pleased that member states voted unanimously to list the UK as a third country, if that had been necessary. The committee proposed an independent and effective domestic enforcement mechanism to take on the role currently filled by the Commission. Through legislation made under the withdrawal Act, we are bringing over into UK law all relevant legislation and associated reporting requirements on exit day.

On our enhancement of enforcement controls, the Invasive Alien Species (Enforcement and Permitting) Order 2019 ensures that the principal EU regulation on the prevention, management, introduction and spread of invasive alien species will be effectively enforced at the UK border. We have robust legislation on diseases and pests which allows enforcement of domestic legislation. The Animal Health Act sets out clear powers of access and enforcement, while individual orders made under that Act identify which breaches and non-compliances are punishable under the Act.

The noble Lord, Lord Krebs, and my noble friend Lord Selkirk mentioned the Food Standards Agency—a non-departmental public body—maintaining its independence of government. Although the FSA works very closely with the Department of Health and Social Care, I meet Heather Hancock and officials with biosecurity issues and food safety in mind. It is important that that independent body can provide the information. When I get to it in the list of replies, I will refer to some of that in rather more detail. We will continue to review what, if any, additional measures need to be taken if we are concerned about further enforcement issues.

The noble Lord, Lord Krebs, and the noble Baroness, Lady Sheehan, spoke about co-operation. Ongoing co-operation with our friends and partners in the EU is essential so that in any trade we have, we and they do not increase the risk of animal and plant diseases, pests and invasive non-native species entering this country. We remain committed to engaging with the EU and international partners to maintain and enhance networks. As many noble Lords, particularly the noble Lord, Lord Krebs, know, we have significant scientific expertise. Many international experts will continue to sit on international advisory boards, including the European Food Safety Authority. The UK’s Chief Veterinary Officer and Chief Plant Health Officer are outstanding, as are their teams. Having travelled with them in Europe and the United States, I know that their reputation is very considerable indeed and we should be proud of our country’s reputation for world-class science.

On trade and inspections, the committee highlighted a number of areas which might change as our relationship with the EU develops. The disease and pest risks posed to the UK by the EU will not change overnight, so we are confident that our plans are proportionate and practical. The Government consider that controls on imports should be risk-based and proportionate, taking advantage of available technologies, which we believe will help us facilitate frictionless trade.

Continued participation in EU pest and disease notification systems is of course desirable, and we would like to retain full access to the EU systems. Indeed, there is some precedent for third-country access to EU notification systems, and it is clearly something that we will want to negotiate. These public notifications will be supplemented with extensive intelligence-gathering from other organisations, agencies and networks, and will be supported by enhanced bilateral relationships with key trading partners and our nearest neighbours.

Defra works closely with the Food Standards Agency and the Department of Health and Social Care to ensure that the regulatory regime for food safety remains robust when the UK leaves in order to protect public health and retain the confidence of consumers and international partners.

The noble Lord, Lord Teverson, raised the issue of TRACES. We recognise the important role that TRACES plays in monitoring the movement of animals, animal products and high-risk food and feed, and in minimising biosecurity risks. The UK replacement, which the noble Lord, Lord Trees, referred to—the Import of Products, Animals, Food and Feed System, or IPAFFS—has been built and was deployed in mid-March for import agents dealing with countries outside the EU. We are continuing to develop IPAFFS. I emphasise that the Government are seeking a deal and a negotiated arrangement. However, should the UK leave without a deal, EU imports of live animals, germinal products and certain animal by-products could be notified using IPAFFS.

For plants, we will operate a risk-based verification system, allowing inland surveillance to confirm that certification requirements are being met. The existing EU plant passport will be replaced by the internationally recognised phytosanitary certificate.

I turn to some of the specific points that were raised. My noble friend Lord Caithness and the noble Lord, Lord Teverson, asked how the UK is performing against the targets set out in the UN Convention on Biological Diversity. We are making progress but fully recognise that we need to do more. The convention has 20 targets, and we have, for instance, expanded our protected areas at sea and have provided new funding for woodland expansion and peatland restoration. While I was on Dartmoor on Saturday, I saw some of that peatland restoration work.

My noble friend Lord Caithness referred to the Action Oak campaign. This was a partnership that I was very keen to start up. My noble friend Lord De Mauley may have thought that he was going to set it up but it was actually my privilege to do so. It is a great partnership and we want to address urgently the research needs for the protection of a very significant tree. It is host to 2,200 species, many of which rely solely on the oak.

My noble friend Lord Caithness and the noble Lord, Lord Grantchester, both referred to trees. To respond in staccato to the question of what trees to plant: definitely oak, grown in Britain and UK-sourced. Of course, we need appropriate trees for appropriate places, and the Forestry Commission can give very good advice on that. I also say to the noble Lord, Lord Grantchester, that our discussions with the Horticultural Trades Association are much stronger and we have very close collaboration with it. Guidance is an issue. Xylella is certainly making nurseries very conscious of enhanced biosecurity. In fact, it was the Secretary of State who most strongly pushed for further restrictions and action in the European context. If that had not been forthcoming, which it was, I would have been very keen to take national measures, as we have done on other occasions. Something that will be very interesting when we have our own responsibilities is the speed with which we can make decisions. It was a point I made, and which was raised with me, when I gave evidence.

On disease awareness, my noble friend Lord Caithness asked about plant health and the plant health portal. We have a risk and horizon-scanning system which looks very closely at all global threats. We liaise with embassies in countries where there are plant health problems. Outbreak assessments for animal diseases are published on GOV.UK.

The noble Lord, Lord Browne of Ladyton, raised the BioRISC project. Defra is fully engaged in that and we are looking forward to the debate at St Catharine’s College in July. I know that Professor Nicola Spence, our Chief Plant Health Officer, will be part of those deliberations.

The noble Lord, Lord Browne of Ladyton, also mentioned the biosecurity strategy. The governance board has been set up at director and official level, there is a working group, and there are monthly meetings across government. The Government are very active on this. I am sorry these replies are rather staccato, but I want to get through as many as possible.

The noble Lord, Lord Krebs, mentioned RASFF and rapid alert access. Negotiations are ongoing. We are also strengthening our links with the WHO’s International Network of Food Safety Authorities—INFOSAN—which includes 180 countries.

The noble Lord, Lord Krebs, also raised concerns about guaranteeing that imported food will continue to be safe. The Food Standards Agency is responsible for and absolutely committed to ensuring that imported food continues to be safe for our consumers, and that will of course continue.

The noble Baroness, Lady Sheehan, asked whether standards will change after exit. The UK is considered world-leading in standards of food safety and quality and these are backed by a rigorous legislative framework. We will maintain those high standards. The Secretary of State has been clear on a number of occasions that we do not intend to compromise our high food standards in pursuit of trade deals. We are committed to upholding and indeed strengthening our high standards in food, public health and safety, product performance and environmental protection. I am very happy to put that on the record again in your Lordships’ House.

Turning to vets, I declare that two members of my family are in the veterinary profession. We have been strengthening this area by working with official veterinarians. We now have 300 additional approved OVs. I am told that I have three minutes left, so I will write more fully on that. My noble friend Lord Selkirk referred to plant health inspectors and we are also increasing the number of plant health inspectors and support staff.

On legal powers to protect biosecurity, we will certainly give consideration to the extent to which we implement aspects of revised arrangements to be introduced in the EU from December 2019 through the new plant health official controls regulation. Indeed, the UK had significant influence in shaping those new arrangements.

There are a number of other points I should raise. My noble friend the Duke of Montrose spoke about amending the list of invasive species. The Secretary of State will have power to make regulations to change the list of species of special concern. The power can be exercised only with the consent of Welsh Ministers and DAERA and, in so far as it concerns import and export controls, the Scottish Ministers. Parliament will have the opportunity to scrutinise any regulations.

The noble Lord, Lord Grantchester, referred to veterinary investigation centres. There are 10 across England and Wales. Also on the very important issue of vets, the Government commissioned the Migration Advisory Committee to review the composition of the shortage occupation list. The department responded with the request to include vets on that list. Preparations are being made should there be no deal before the office for environmental protection is established.

The noble Lord, Lord Grantchester, also asked whether we will have agreed continued access to the European alien species notification list. The EU system enables critical information to be shared quickly. Clearly, future access is dependent on negotiations. We are developing contingency plans but, again, co-operation is hugely important.

I have not mentioned much in my speech the APHA’s vital role in this work. The rapid risk-assessment processes are absolutely essential. I am informed on a daily basis about outbreaks around the world. We also have very close co-operation with Ireland. The epidemiological status of the island of Ireland is so important and must continue. Indeed, through the British-Irish Council, the whole United Kingdom, Jersey, Guernsey, the Isle of Man and the Republic are closely engaged on this and all of them are involved in Invasive Species Week.

I am very sorry that there is so much more I would like to have said, but I will write to your Lordships, in particular in reference to the point the noble Lord, Lord Krebs, made about risk management. This is clearly a matter for both departments, but also for the independent Food Standards Agency. That independence is so crucial. I thank your Lordships, in particular the noble Lord, Lord Teverson, and his committee. It is very important that biosecurity has the highest possible profile. Much damage can be done if we do not look after our biosecurity.