Environment Bill

Lord Duncan of Springbank Excerpts

Committee stage
Wednesday 30th June 2021 Lords Chamber

[Lord Cormack (Con)]

My Lords, it is a delight to follow my noble and learned friend Lord Mackay of Clashfern, who is in many ways the embodiment of wisdom in your Lordships’ House. How good it is to have him back with us and speaking as vigorously and to the point as he always does.

I cannot begin to rival the expertise or knowledge of the noble and learned Lords who have spoken, but shall give my noble friend the Minister a secular analogy. When we enter this Chamber from the Prince’s Chamber, we have in front of us that great classical sculpture by John Gibson of Queen Victoria. It is flanked on either side by the figures of Justice and Mercy. The figure of Justice holds in her hands, as the noble Lord, Lord Anderson, reminded us earlier, the sword and the scales.

Would my noble friend Lord Goldsmith seriously think, as he entered the Chamber, of removing that sword and those scales? Because that, metaphorically, is what he is proposing to do this afternoon if he does not accept the spirit of these amendments. It is palpably absurd—I refer to the interesting contribution of the noble Lord, Lord Rooker—to have an Environment Bill that has as one of its slogans, “The polluter need not pay”. It is absurd. Can my noble friend not recognise that absurdity?

I have said before in these debates that it is essential that an environmental Bill should command the support of Members in all parts of your Lordships’ House, particularly one that is meant to stand the test of not just some time but generations. We cannot have a Bill enacted that, in effect, does what my noble and learned friend Lord Mackay has just said and contradicts one of the fundamentals of English law.

I hope that my noble friend Lord Goldsmith will do what I urged him to do when speaking to an amendment on Monday. I said that because it was so important that the Bill should command the support of your Lordships in all parts of the House, he should convene some sort of round table and talk to us all. There is an answer to all these conundrums and problems that we are highlighting, because we all support the basic premise of the Bill. However, if we support that premise and intention, we cannot allow the Bill to go on to the statute book so fundamentally flawed as it is at the moment. So I say to him again, “Please talk to those of us who wish you well, who wish the Bill well, but who can never lend support on Report to a Bill that is so riddled with absurdity”.

[Lord Duncan of Springbank (Con)]

My Lords, I begin by drawing attention to my interests in the register, notably the chairmanship of the National Forest.

I was pleased to put my name to Amendments 105 to 108, because they are necessary and they make the Bill better. We have heard echoed by a number of noble Lords how that can be achieved and I hope that the Government hear that. In many ways, this clause is like a Monet painting. It looks fine from a distance, but the closer you get the more the detail seems to disappear. What we need now is clarity and for that detail to be recognisable. Non-compliance must affect validity. That is a simple statement of fact. The beneficiary of an environmental deterrent or damage cannot escape sanction because he is materially affected by the sanction. That cannot be a useful way of moving forward. The remedies available must be a deterrent. If they are not, the system will be gamed. Individuals will find ways through, between and under, and they will be able to make a mockery of what should be a very important institution.

The OEP is a successor to a body that was able by its threats to bring about fundamental change in how environmental laws were enforced—and it made the environment better, safer and healthier by doing that. The successor body must be able to do the same and have available to it each of the elements that can allow it to achieve that outcome. That is why I was very pleased to put my name to these amendments.

[Baroness Parminter (LD) [V]]

My Lords, we on these Benches thank the noble Baronesses, Lady Jones of Moulsecoomb and Lady McIntosh of Pickering, and the noble Lord, Lord Anderson of Ipswich, for these amendments, which expose the fundamental flaws in the proposed enforcement powers of the environmental watchdog. We support all the amendments, particularly Amendment 107. As others have said, lawyers in this Chamber have eloquently made the case, so I will merely reflect on two points.

First, the Government have said that they want the OEP to be world-beating in its role. Yet a cursory review of its remit, as opposed to that of the body in Scotland, Environmental Standards Scotland, suggests that that is absolutely not the case and that the powers of the OEP are far more prescriptive than those of Environmental Standards Scotland, which has the power to take the steps that it considers appropriate—I repeat, the steps that “it” considers appropriate—to secure public authorities’ compliance with environmental law and how it is implemented or applied. So, if the Government want the OEP to be a world-beating watchdog, they need to look at the options rather more carefully in order to ensure that that is delivered.

Secondly, on Amendment 107, which seeks to remove the restriction on the ability of the court to grant remedies, such as squashing orders, where that could cause severe hardship, we agree very much with the noble and learned Lord, Lords Thomas of Cwmgiedd, who said that we should trust the judges. As it stands, the Bill fetters the discretion of the judiciary and radically alters the balance of power in favour of the Executive.

The noble Lord, Lord Krebs, asked: who bears the brunt of this weight in the change in the balance of power? He rightly reflected that it is nature—but, equally, it is the people of our country. It has been a fundamental cornerstone of British democracy that people have a right to environmental justice and to hold the Government to account. It is also a right guaranteed to the British public, given that we are signatories to the Aarhus convention. Therefore, as it stands, unless these amendments are accepted, we the British public will have weaker rights to environmental justice than we had previously under the European Union. We therefore urge the Government to accept these amendments and to ensure that the OEP has the robust powers that it needs in order to be—and, as the noble Earl, Lord Caithness, said, to be seen to be—an effective and robust environmental watchdog.

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[Baroness Young of Old Scone (Lab) [V]]

My Lords, I declare two interests—one as a member of the Commission on Food, Farming and the Countryside, and the other in the mental well-being of the Minister. We are picking on him and I feel deeply sorry for him, because he is between a rock and a hard place. This is another example of an amendment that, in a normal world, he would simply accept and we could all go home happy.

I support Amendments 110 and 112, which rightly specifically include “soil” in the definition of the natural environment. As other noble Lords have said, we have already touched on the importance of soils during our debate on a previous amendment. Indeed, many of our older Members of the House will remember Kenneth Williams who, in character, used to say in response to any question at all, “Arr, the answer lies in the soil.” He was right. However, for a period, with the exception of the organic movement, soil came to be regarded as nothing more than a handy medium for holding plants up, especially crops. It was nothing more complex. Of course, the pendulum has now swung and it is generally acknowledged that soils are complex ecosystems with huge importance for a whole range of things such as carbon storage, flood alleviation, crop health, biodiversity and water quality. Other noble Lords have gone through these.

It is true to say—the Commission on Food, Farming and the Countryside very much supports this—that agroecology and restorative agriculture, which focus on the importance of soils, are going to be vital components of the future of farming and food production. Of course, the mycorrhizal elements of soils are the telegraph systems for trees and plants and are capable of warning colleague trees and plants many metres away of attack by something nasty, so that they can prepare to repel boarders. Basically, soil is pretty cunning stuff. However, it has been the poor relation in terms of environmental action and safeguarding in the past, and more than one-third of the world’s soils are degraded. That is no less the case in this country, with factors such as erosion, sealing, compaction and contamination causing this deterioration.

I very much welcome the 25-year environment plan highlighting the need to manage all the UK’s soils sustainably by 2030. Signalling the importance of soils in environmental protection ought to be the purpose of including soil in the definition of the natural environment in this Bill. It is not just a practical step; it is a signalling step of the fundamental importance of soil.

The noble Lord, Lord Curry, reminded us that one of the reasons given by the Minister for not including soil was that to include it would require a target and the science was not there yet to do that. The noble Baroness, Lady Bennett of Manor Castle, said that we need a soil metric now and it does not need to be perfect. I very much agree with that. Indeed, that has been endorsed today by the report from the Environmental Audit Committee in the Commons, which stressed the need for the rapid development of soil indicators and for a shadow target to be established urgently in the meantime.

We are going to need soil metrics for a whole variety of purposes, not least because soil is going to be fundamental to the environmental land management schemes. Let us get on with it and establish a metric. It will not be right but it will be something, and it will be a huge signal of the importance of soils in this section of the Bill.

[The Deputy Chairman of Committees (Lord Duncan of Springbank) (Con)]

The noble Lord, Lord Whitty, is not taking part in the debate so I call the noble Duke, Lord Wellington.

[The Duke of Wellington (CB)]

My Lords, I wish to speak briefly to Amendment 112, tabled by the noble Lord, Lord Randall of Uxbridge. As other noble Lords have said, Amendment 110 has very much the same purpose.

In Clause 43, in defining what is meant by “natural environment”, mention is made of “land”, “air” and “water”, but I really do think that the Bill would be much improved by including “soil”. All scientists tell us how much the quality of soil has been degraded in this country in recent years. There is an increasing risk of erosion from flooding. There is an increasing occurrence of compaction caused by the regular passing of heavy agricultural machinery. There is a decline in organic matter in the soil, brought about by modern farming methods and the use of chemical fertilisers, insecticides and herbicides. I am sure that the new environmental land management schemes will indeed encourage farming methods that will avoid this steady and continuous degradation. Let us hope they will go further and encourage and support farming systems that restore soil quality. However, in the meantime, I encourage the Minister to accept either Amendment 112 or Amendment 110, which would demonstrate that the Government intend to take very seriously the question of soil quality and to include it in the various proposals to improve the natural environment.

I turn briefly to Amendment 194AC in this same group, which deals with biodiversity gain in planning. Of course, I would be minded to support any improvement in biodiversity in rivers and lakes as a result of any new planning application. I must say that I am doubtful whether it can really be practical to place on all developers an obligation to demonstrate on each occasion a biodiversity gain in water. Surely, connection to a wastewater system that will not create any increased risk of sewage discharges in the adjacent river system should be a condition for all developers. The most important point for improving aquatic biodiversity is to reduce in the short term and eventually eliminate discharges that pollute our rivers. Therefore, although I know it is well intentioned, I personally could not support Amendment 194AC.

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Clause 44 agreed.

[The Deputy Chairman of Committees (Lord Duncan of Springbank) (Con)]

We now come to the group consisting of Amendment 113F. Anyone wishing to press this amendment to a Division must make that clear in the debate.

Clause 45: Meaning of “environmental law”

Amendment 113F

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[Lord Goldsmith of Richmond Park (Con)]

I thank my noble friend Lady McIntosh of Pickering for Amendment 113F and reassure noble Lords that the Government are fully committed to the important aims of the Aarhus convention and fulfilling our obligations under this agreement.

The definition of environmental law in the Environment Bill has been designed with the primary purpose of defining the scope of the OEP. The OEP’s remit is to oversee the implementation of domestic legislation, rather than international law. Separate mechanisms exist to regulate compliance with international agreements.

Where the OEP determines a complaint to be outside its scope and considers that the complaint is regarding a failure to comply with the convention, the OEP would be expected to advise the complainant to approach the Aarhus convention compliance committee. This committee considers complaints related to obligations under the Aarhus convention, which is international law, and submits recommendations to the full meeting of the parties.

I assure my noble friend that where the provisions of the Aarhus convention have been given effect in UK law and meet the definition of environmental law, they will fall within the remit of the OEP. The OEP will consider which legislation falls within the definition on a case-by-case basis.

There are, of course, areas in which, appropriately, provisions implementing the convention may not be included in the OEP’s remit. For example, under Clause 45(2)(a) provisions on the

“disclosure of or access to information”

are specifically excluded from the definition of environmental law and therefore from the OEP’s remit. This is to avoid overlap with the role of the Information Commissioner’s Office, as we discussed in one of our earlier debates. Amending the definition as proposed would therefore result in confusion, including over the functions of the OEP and the Information Commissioner’s Office.

In response to the comments of the noble Baroness, Lady Bennett, on air pollution, Defra makes air pollution information available through a range of channels. It also informs a network of charities, including the Asthma UK and British Lung Foundation partnership, the British Heart Foundation, the Cystic Fibrosis Trust and the British Thoracic Society, when elevated air pollution levels are forecast to ensure that information reaches the most vulnerable. It will not be bullet-proof or foolproof, but the attempt is there and the mechanism is there to provide that information to those who need it. More broadly, there are several ways in which the public can access air quality information, including through mainstream media, air quality alert systems and dedicated websites, such as those of the UK air and health charities and numerous campaigns. There are a number of alert systems, including in Manchester and London, that people can sign up to, often funded by local authorities. As I say, this is not a bullet-proof or foolproof process. Like everyone in the Committee’s, my heart goes out to Ella’s family. What happened to her absolutely needs to be the basis for all kinds of lessons learned and adds another layer of urgency to the work we are doing through this Bill in relation to air quality.

This group concludes the governance part of the Bill. I have appreciated the interest of all parties in the Committee in this important part of the Bill. I conclude by reaffirming that my door is open to continued discussions on these and other essential issues.

Before I ask my noble friend to withdraw her amendment, I note the comments of the noble Baroness, Lady Jones. There are plenty of areas in which I expect the Bill will improve, but it is not within the gift of a Minister unilaterally to decide which amendments should be accepted. I do not think there is any doubt in the department I work for that there are areas in which the Bill can and should be improved. Plenty of very helpful amendments and suggestions have been put forward by the Committee. With that, I ask my noble friend to withdraw her amendment.

[The Deputy Chairman of Committees (Lord Duncan of Springbank) (Con)]

I have received no requests to speak after the Minister, so I move to the mover, the noble Baroness, Lady McIntosh of Pickering.

[Baroness McIntosh of Pickering (Con)]

My Lords, I am extremely grateful to all those who have spoken in the debate, so movingly in the case of the noble Baroness, Lady Bennett of Manor Castle. I welcome the opportunity to have pressed my noble friend in this regard.

I will revert back to practitioners at the Bar Council to ask whether they are completely satisfied with this. From their briefing, my understanding is that there are already similar exclusions in the Aarhus convention. I congratulate my noble friend on his pronunciation. I am extremely impressed and I think we will be speaking Danish together before we even know it. There are similar exclusions to our own freedom of information as exist under the Aarhus convention.

The subsection (2)(a) to which my noble friend referred is a blanket exclusion about which I have some fear. The noble Baroness, Lady Bennett, highlighted that we need to be very clear about what is being excluded. If it is information that could make a life or death change to someone like the parent of Ella, it is very important that we are cognisant of that and try to work within the law as much as possible.

I support both my noble friend Lord Caithness and the noble Baroness, Lady Jones of Whitchurch. I am grateful for her support for the sentiments behind this amendment. When my noble friend Lady Bloomfield and I joined, which was the same year, it was around the time that the procedures here changed. I welcome the fact that in Committee we can have much more probing and lengthier debates, but there was possibly some merit, on a case-by-case basis, to disposing of some of those amendments that could possibly be accepted by the Government or easily disposed of either way, rather than storing up problems when the Government have given us such a tight deadline, as they have. If we can work together and find a middle way on this, that would be very helpful indeed.

With those remarks and the fact that I will go back and take further advice from the Bar Council, I am delighted to have had the debate but beg leave to withdraw the amendment at this stage.

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Schedule 4: Producer responsibility obligations

[The Deputy Chairman of Committees (Lord Duncan of Springbank) (Con)]

We now come to the group beginning with Amendment 119. Anyone wishing to press this or anything else in this group to a Division must make that clear in debate.

Amendment 119

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