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.

Plant Health (Amendment) (Northern Ireland) (EU Exit) Regulations 2019

Lord Gardiner of Kimble Excerpts

Monday 13th May 2019 Lords Chamber

Moved by

[Lord Gardiner of Kimble]

That the Regulations laid before the House on 8 April be approved.

Special attention drawn to the instrument by the Joint Committee on Statutory Instruments, 58th Report. Relevant document: 24th Report from the Secondary Legislation Scrutiny Committee (Sub-Committee B)

Motion agreed.

Animal Health, Plant Health, Seeds and Seed Potatoes (Amendment) (EU Exit) Regulations 2019

Lord Gardiner of Kimble Excerpts

Monday 13th May 2019 Lords Chamber

Moved by

[Lord Gardiner of Kimble]

That the Regulations laid before the House on 5 April be approved.

Relevant document: 58th Report from the Joint Committee on Statutory Instruments (special attention drawn to the instrument)

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

My Lords, I hope that it will be helpful to your Lordships if I speak to both the Animal Health, Alien Species in Aquaculture and Invasive Non-native Species (Amendment) (EU Exit) Regulations 2019 and the Animal Health, Plant Health, Seeds and Seed Potatoes (Amendment) (EU Exit) Regulations 2019, given the close connection between the two instruments.

It may also be helpful to explain why we are debating the Animal Health, Plant Health, Seeds and Seed Potatoes (Amendment) (EU Exit) Regulations 2019 again when it has already had your Lordships’ full consideration. We are doing so because timetabling issues in the other place led to a delay in the instrument being made; that meant that it was necessary to withdraw the instrument and make it under the emergency procedure, under which we are now debating it. Both statutory instruments were made under the emergency procedure as both were required to support the UK’s application to the European Commission for third-country listed status for animal health purposes. As the Government have made clear, we are seeking a negotiated deal with the European Union, but we are taking responsible action to prepare for other scenarios.

The European Commission called a meeting of the relevant committee—SCoPAFF—on 9 April 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. Both SIs therefore had to be made in a very short window of time as both contain amendments to animal health legislation. By using the emergency procedure to make the SIs, the UK was able to assure the Commission that all relevant legislation had been made, enabling member states to vote unanimously on 9 April to list the UK as a third country. This would have enabled the export of animal products and most live animals from the UK to the EU to continue in the event of a no-deal scenario on 12 April. The Government have taken care to avoid using the emergency procedure under the EU withdrawal Act, but we considered use of this procedure to be appropriate in this instance.

I want to make it clear that our biosecurity controls for animals and plants are paramount and that these instruments continue to contribute to ensuring that we will have the most robust arrangements in place to protect public health and the environment. The instruments make technical operability amendments covering animal health, plant health, aquaculture, invasive non-native species, seed marketing and seed potatoes, and will contribute towards ensuring that the legislation protecting our biosecurity is fully operable.

As the first statutory instrument has been debated in this House previously, I hope that it will be helpful if I summarise it. The amendments made by the instrument concern recent updates on animal health control measures relating to African swine fever in certain member states. Retaining this EU decision requires the appropriate Minister in the UK to display public information notices regarding the importance of biosecurity measures to prevent this pig disease being brought into the UK; it also prohibits the movement of live feral pigs.

On TSEs, a reference to a function of the European Commission in the Transmissible Spongiform Encephalopathies (England) Regulations 2018 has been amended to refer to the Secretary of State instead of the EU Commission.

Part 3 of the statutory instrument covers plant health. It amends the Plant Health (Amendment) (England) (EU Exit) Regulations 2019 and the Plant Health (EU Exit) Regulations 2019 to recognise arrangements with the Crown dependencies and deal with new EU plant health decisions, including controls on the red-necked longhorn beetle. I remember with some affection the debate we had on this particularly difficult beetle. As I said before, this is a damaging pest and a threat to a range of fruit and ornamental species in the UK, including cherry, peach and plum.

Regulations 4 and 5 recognise the arrangements with the Crown dependencies, following planned meetings concluded early in 2019, that will continue to facilitate the import and movement of regulated plants and plant products into the UK. The changes made by this instrument give effect to those arrangements. Regulation 5 also provides for the import of ash wood from the United States of America and Canada to continue under the same stringent derogation provisions after exit, ensuring continuity of supply for UK businesses without—I emphasise this—any compromise to bio- security.

The Plant Health (Amendment) (England) (EU Exit) Regulations 2019 are also amended to enable UK plant passports to contain certain details in relation to the marketing of fruit plant propagating material and fruit plants. This is intended to avoid the need for dual labelling.

Part 4 of this statutory instrument covers seed marketing and seed potatoes, and applies to England as this is a devolved matter. Indeed, in the previous debate we considered the importance of consistency but also of respecting the devolved arrangements, which have worked particularly well. These regulations are amended to ensure that growers in England have continued access from the EU to new varieties of vegetables and a continued supply of seed potatoes for an interim period after EU exit. I remember the noble Baroness, Lady Bakewell, talking about the kalette during that element of our considerations. This instrument is required to attend to a number of elements of retained direct EU legislation to ensure operability and appropriate functioning.

I turn to the Animal Health, Alien Species in Aqua- culture and Invasive Non-native Species (Amendment) (EU Exit) Regulations 2019. This instrument amends four previous EU exit statutory instruments to ensure that the previous instruments work fully as intended. At this moment, I again extend my regrets and apologies, and I take responsibility if errors are discovered, but—as I have said before—given the pressures, I understand how these errors have been made. I put on record that I regret having to bother your Lordships with a piece of business about errors. I am open, transparent and straight about that, but I regret it.

The invasive non-native species instrument is amended to correct a small number of drafting and typographical errors that have been identified. An amendment has also been made to Regulation 7(3)(e) of the invasive species instrument to ensure consistency with the Invasive Alien Species (Enforcement and Permitting) Order 2019. The order provides for recovery of enforcement-related costs from importers by enforcement authorities, and this amendment provides certainty that importers are responsible for these costs.

The two aquatic animal health and alien species in aquaculture instruments have been amended to allow cross-references in the legislation to be more readily understood. I agree with that. Both instruments contain reference to an article in EU directive 2006/88 that has since been implemented by a more recent Commission decision, making these references redundant. These references have therefore been omitted from both SIs.

The instrument relating to the import of and trade in animals and animal products is amended as it revoked a 2006 Commission decision in error, instead of revoking a single article from that decision. This decision imposes the import requirements of fruit bats, cats and dogs from peninsular Malaysia and cats from Australia—intended to prevent the introduction of the Nipah and Hendra viruses—and is now correctly reinstated as EU retained law. The UK does not import any fruit bats, but a number of cats and dogs are imported from these countries and so it was clearly imperative that this situation has been rectified. Again, we are clear that there is no intention to weaken biosecurity standards and, again, I regret that this occurred. I am extremely pleased that, on further scrutiny, this was discovered and we propose through this instrument to sort it out.

Additionally, within the same instrument, lists of animal product commodities that require checks at UK border inspection posts are being amended to make the additional removal of products from the list an administrative function. The import conditions for animals and products remain in the legislation and so, again, there will not be a lowering of any standards.

I emphasise that this corrective instrument makes purely technical changes to these four existing EU exit instruments to ensure that they will operate correctly when we leave. This instrument does not introduce new policy but simply amends the original instruments so that they operate as originally intended.

The decision to use the urgent procedure was not taken lightly. It was deemed necessary in order to protect the biosecurity of the United Kingdom and to prevent financial losses and maintain trade by ensuring that the UK was able to achieve EU third-country listed status in the event of leaving the EU without a deal on 12 April. These instruments will ensure that our strict biosecurity controls with regards to animal health, plant health, aquaculture, invasive non-native species, seed marketing and seed potatoes are maintained. I beg to move.

[Baroness McIntosh of Pickering (Con)]

I thank my noble friend for introducing these two statutory instruments but regret the circumstances that he has set out. I welcome the opportunity to consider them and I have a couple of questions.

Mindful of the fact that we are on the eve of the Chelsea Flower Show, I wish to press my noble friend on the comments he made in relation to inspections and the role of the import controls. When these were considered in the other place on 9 May, our honourable friend David Rutley said:

“Notifications will be required for live animals, Germplasm and animal by-products not for human consumption, and high-risk food and feed are subject to vet checks”.—[Official Report, Commons, 9/5/19; col. 13.]


This raises a question not only about plants but about who will be responsible for the inspection for beetles. Will it be the responsibility of the UK border inspection or the importer? Will the importer pick up the cost of these inspections?

Page 44 of Statutory Instrument 2019 No. 809, refers to the policy on GMO and food and feed regulations. My noble friend has said that these two statutory instruments have been brought forward today in case there is no deal. It would be welcome if he could reassure me that our policy on GMO will not change in the event of no deal.

On a separate matter, I am keen that we use the same language as is used in this and other statutory instruments and regulations from my noble friend’s department, whether it relates to the import of plants, animals, potato seeds or other items within the remit of these two statutory instruments. We successfully amended the Trade Act, but I am concerned that the wording used in that amendment related only to plant and animal health. I would argue that it should extend to food safety. I realise it does not fall entirely within the remit of these statutory instruments, but I would welcome the opportunity to discuss this at greater length with my noble friend if we have the opportunity to do so. I am very keen that the language used by the Department for Environment, Food and Rural Affairs is the same as that used by the Department for International Trade to make sure that, when we look at these issues across departments, we entirely understand what is being considered.

My final question relates to my noble friend’s comments on Statutory Instrument 2019 No. 813. Page 3 refers to the import of fruit bats, cats and dogs. As he explained, we have no imports of fruit bats, for what purpose are they in the regulation before us today?

--- Later in debate ---

Can the Minister clarify what progress is being made in the talks with the EU to guarantee that we will not face greater biosecurity risks and that we will maintain alignment with the EU, including sharing scientific advances and information about new threats without delay? Can he also reassure us about the Government’s plan for future biosecurity collaboration with the EU post Brexit? I look forward to hearing his response.

[Lord Gardiner of Kimble]

My Lords, I am most grateful to all noble Lords. Curiously, this is quite a timely debate, because this week is Invasive Species Week. Tomorrow, after a meeting in the morning chaired by the noble Lord, Lord Teverson—I very much hope that some noble Lords will be present—I will be spending a few hours digging up American skunk-cabbage in Kent. If any of your Lordships would like to join me, I am sure that we can provide wellingtons and spades.

It is timely also because only this morning I had a meeting with the Chief Plant Health Officer and the chair of the Forestry Commission relating to the Chelsea Flower Show, which my noble friend Lady McIntosh referred to, and in particular on the resilience garden that Sarah Eberle is designing to record the importance of resilience and biosecurity. Perhaps it would be of interest to all your Lordships who have spoken if I were to send a note on some of the enhanced biosecurity arrangements being undertaken by the Royal Horticultural Society. For instance, because of oak processionary moth, oak will not be part of any display at Chelsea. There is an enhanced feeling about quarantine and the importance of these matters. I am very pleased that this has been a very determined point taken by Chelsea and the Royal Horticultural Society.

I will go through some of the points made by noble Lords. My noble friend Lady McIntosh asked about the fruit bat. This is before your Lordships because the EU legislation contains reference to fruit bats, so it would not be within the legal powers of the EU withdrawal Act to remove this from the instrument, despite the fact that we do not import fruit bats. The truth is that we are bringing over all the legislation. That is why many of your Lordships have had to consider such a range of issues.

My noble friend also raised the issue of GMO. It is absolutely right that we have very high food safety standards, and there are strict controls on GM crops, seeds and food. All GM products must pass a robust independent safety assessment before they can be marketed, and approved products have to be clearly labelled. These standards will not be watered down when we leave.

My noble friend referred to potentially compromising on food safety. I am prepared to say again that maintaining safety and public confidence in the food we eat remains of the highest priority and that any future trade deal must work for UK farmers, businesses and consumers. Any new products wishing to enter the UK market must comply with our rigorous legislation and standards. I say yet again that this is strongly felt in the department, and I understand why your Lordships raise this frequently.

My noble friend also raised new plant health costs and businesses. Consistent with the existing policy of recovering the cost of providing plant health services through charging those who use the services, fees will apply for any inspections undertaken. For example, documentation and identity checks, which will be required on regulated material from the EU, are charged at £9.71 in total per consignment. Checks on third-party material that enters the UK via the EU will be charged in the same way as third-country material that enters the UK directly.

Inspection of plants, which again my noble friend raised in respect of Chelsea, is an area where we have opportunities to think about heightened biosecurity. It is why, for instance, Grown in Britain is an important concept—not because, as great plant lovers, we have found that many of our plants are not native, but because the issues of biosecurity and pests and diseases have made us have to think more strongly, as we should, about the sourcing of plants from around the world and absolutely not permitting plants from certain parts. This is why, for instance, the EU, with the encouragement of Defra and the Secretary of State, moved very much more strongly on plant movements in those areas with xylella, for instance, with the buffer zones, precisely because it would be so devastating.

My noble friend Lord Deben, the noble Baroness, Lady Jones of Whitchurch, and other noble Lords are absolutely right—I do not for one minute see our leaving the European Union as signalling that we can put a barrier up. I say candidly that, although I have great sympathy with what the noble Lord, Lord Hylton, said—I will say more on this in a moment—22 miles is not wide enough. Yes, we should use the advantages of the sea, but the truth is that all eastern counties have ash dieback in the numbers that they do because of the spread across the continent. Cautiously, I say to my noble friend Lord Deben that I am afraid one of the lessons we should be learning is that the rigour of dealing with invasive species within certain countries of the European Union has not been as immediate.

I will give the example of the Asian hornet—of which we have had zero tolerance. Our rapid deployment force has eradicated every single one, because they are very damaging to our bees, and we rely on our bees and pollinators for so much to do with food production, and because they are a vital part of the eco-system. The Asian hornet arrived in a consignment from China, which is why immediate action had to be taken. The Channel Islands are having great problems because they are nearer to France. When the oak processionary moth arrived in an oak tree specimen, we did not immediately deal with it. That is why we are now seeking to contain the very damaging oak processionary moth in London and Surrey, pending better understanding through research.

[Lord Davies of Stamford (Lab)]

The whole House knows of the noble Lord’s expertise in this area, and of his genuine personal commitment to environmental protection and the avoidance of environmental harm. He says that other countries in the EU are not carrying out the existing EU rules on that subject as robustly as we are. Perhaps the rules themselves need to be strengthened. The matter is very important indeed. Does he agree that in those circumstances the best thing is to have very tough rules in the EU that are imposed effectively, and that states which fail to live up to their legal obligations be penalised? For that purpose, would it not be very desirable if we remained part of the European Union?

[Lord Gardiner of Kimble]

I rather thought that the noble Lord might take me in that direction at the end of his comments. He is absolutely right in his opening remarks about international collaboration. Whether within the European Union or the whole international family, we are subject to many conventions, and are considered world-leading. We have not got it all right. There are many lessons to be learned. I am very keen that we heighten biosecurity. Candidly, I see our mission on this as a global reach. Yes, our partnership with our very close neighbours and friends is going to be absolutely crucial as we all deal with invasive species, pests and diseases, because these species do not respect any border. That is precisely why our next set of instruments deal with a single epidemiological unit on the island of Ireland. This is a subject I could get a little carried away on.

I say to my noble friend Lord Deben that I absolutely understand about African swine fever. I receive regular commentary on its devastating impact, not only in central and eastern Europe and into Russia, but in China. It is a very dangerous and damaging disease, and the noble Baroness, Lady Bakewell, is right to say that all pig producers in this country are very worried indeed about it. That is why we are raising awareness through the newspapers and magazines in many languages for workers from eastern Europe, saying that they must not bring pork products back with them, for instance. We must raise awareness of personal biosecurity because of the outbreaks in the Czech Republic and Belgium. Although it has not been confirmed in the Belgian outbreak it is certain that, as I have said before, in the Czech Republic it was a loose connection to someone discarding a pork product. We need to be absolutely clear on that.

Animal Health, Seed Potatoes and Food (Amendment) (Northern Ireland) (EU Exit) Regulations 2019

Lord Gardiner of Kimble Excerpts

Monday 13th May 2019 Lords Chamber

Moved by

[Lord Gardiner of Kimble]

That the draft Regulations laid before the House on 3 April be approved.

Motion agreed.

Trade in Animals and Related Products (Amendment) (Northern Ireland) (EU Exit) Regulations 2019

Lord Gardiner of Kimble Excerpts

Monday 13th May 2019 Lords Chamber

Moved by

[Lord Gardiner of Kimble]

That the Regulations laid before the House on 5 April be approved.

Relevant document: 24th Report from the Secondary Legislation Scrutiny Committee (Sub-Committee B)

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

My Lords, these instruments relate to biosecurity in Northern Ireland. Given their interconnection and for the convenience of your Lordships, they have been grouped together to enable co-ordinated scrutiny. They relate to trade in animals and related products, plant health, seeds and potatoes, and extend to Northern Ireland only.

The first two instruments, relating to trade and plant health, are among a small number of measures that have been made under the urgent procedure. Due to the importance of having them in place for exit—initially, 29 March and then 12 April—the timeframe did not permit us to lay them via the normal route. It was of the utmost importance that we were in a position to assure the European Commission that we had a complete statute book in advance of its consideration of the UK’s application for third-country listed status in the event of exit.

The third instrument, the Animal Health, Seed Potatoes and Food (Amendment) (Northern Ireland) (EU Exit) Regulations 2019, was debated in the House of Commons on 23 April under the affirmative procedure. As it does not contain legislative amendments that would be critically needed to be in operation on exit day, it has not been subject to the urgent procedure.

These three statutory instruments largely mirror the amendments contained in instruments amending the corresponding legislation for Great Britain, which have already been considered by your Lordships. As with those instruments, the amendments presented today are technical and designed to ensure continued operability of legislation.

On checks on imports from the EU, these instruments do not introduce any change of policy and, in particular, do not impose any additional regulatory controls on imports from the EU, including those entering Northern Ireland from the Republic of Ireland. Importantly, they recognise that biosecurity risks associated with animals, animal products, plants and plant products from the EU will not change immediately on exit. They do not introduce any checks on the Northern Ireland border.

However, to ensure compliance with international obligations, the relevant instrument provides for some operational changes to the import arrangements for regulated plant and plant product materials. In essence, this would mean that the need for an EU passport for these regulated commodities would be replaced with the relevant certificate required under international law. As such, it is not expected that this would place an additional burden on industry. Controls on plants and plant products moving into Northern Ireland from the EU that do not currently require an EU plant passport would not change.

On checks on direct imports from non-EU countries, the same rigorous import controls that are currently applied in respect of animals, plants and associated products which enter Northern Ireland directly from a country outside the EU will continue.

On checks on imports from non-EU countries that transit the EU, all three instruments provide that there is no gap in controls in relation to animals, animal products, and plant and plant products that would present a risk to Northern Ireland’s biosecurity. The instruments debated do not—I emphasise “not”—in any way adversely impinge on the established partnership arrangements on animal and plant health matters on the island of Ireland, which is recognised as a single epidemiological unit. The noble Baronesses, Lady Jones of Whitchurch, Lady Bakewell and Lady Parminter, and I have all been fortunate enough to have exchanges with Northern Ireland officials from DAERA. I can safely say that they are clear that these measures are needed in terms of Northern Ireland’s responsibilities for the whole island.

The Trade in Animals and Related Products (Amendment) (Northern Ireland) (EU Exit) Regulations 2019 amend Northern Ireland legislation relating to imports, transit through the EU of live animals, including horses, animal products, reproductive material used for animal breeding and bees. They also amend legislation regarding the movement of pet animals, which is clearly an important issue in Northern Ireland given the land border.

The instrument makes necessary technical corrections to the Trade in Animals and Related Products Regulations (Northern Ireland) 2011, a key piece of Northern Ireland legislation that sets out requirements for trade in live animals and genetic material with the EU and imports of animals and animal products from outside the EU. This instrument makes no policy changes to the 2011 regulations. It makes technical changes: for example, it replaces references to “EU” with references to “UK” and “legislation of the EU” with “retained EU law” where appropriate. It also removes provisions which would be inappropriate to retain following exit without an agreement. These include references to the tripartite agreement on movements of horses, which will cease to have effect here on exit, and provisions which stipulate EU requirements for the intra-Community movement of animals and genetic material and provide for the automatic circulation in the UK of animals and products that have cleared EU border inspection posts. It also provides for the transfer of the power to approve border inspection posts in Northern Ireland from the European Commission to Northern Ireland’s Department of Agriculture, Environment and Rural Affairs. This is achieved by amending the existing definition of a border inspection post in the 2011 regulations. Overall, this instrument ensures that the veterinary controls and other import conditions that the 2011 regulations provide can continue to operate with the necessary protections for animal and public health.

--- Later in debate ---

[Lord Teverson (LD)]

My Lords, I have been very impressed by the debate. I remind Members of the House that there will be a debate on Wednesday afternoon on Brexit and biosecurity, which goes through this whole issue and applies much more broadly. The speakers’ list is still open. I am sure that the Minister and I would very much appreciate further participation.

[Lord Gardiner of Kimble]

I entirely agree with the noble Lord, Lord Teverson. I am very much looking forward to the debate; I rather think I am looking at a number of the participants already. I am most grateful to the noble Lords, Lord Browne of Belmont and Lord McCrea, for participating and emphasising that we wish this matter were being dealt with elsewhere. That should be the right way forward—it is the way mature politics needs to proceed—so I very much endorse what the noble Lord, Lord Browne of Belmont, and the noble Baroness, Lady Jones of Whitchurch, have said. In my view, the responsibility is really on everyone in the public service to ensure that these talks are productive and successful. Alas, as we all know, we are talking about people’s lives and communities. We want a better time for Northern Ireland—what a great place it is—so, although I should not be doing this, it is a privilege and we are seeking to do the right thing for Northern Ireland.

My noble friend Lady McIntosh hit on a vein: I think she and many of your Lordships know that I am rather keen on the horse. Obviously, the Government recognise the value of the equine sector to the UK economy. I also know—declaring an interest in that my wife’s family breed horses in County Tipperary—that it is of great importance to the rural economy of Northern Ireland and the Republic. We therefore need to do all we can to ensure the movement of horses between the United Kingdom and Ireland—and indeed France; across the piece—and to ensure that in some way we can continue what was the tripartite agreement. We need to work on some arrangement to ensure the free movement of horses, particularly bearing in mind biosecurity. We do not want any future arrangements to jeopardise something that is absolutely crucial, particularly in that thoroughbred end—racing—where pest diseases, viruses, et cetera, are absolutely kept to a minimum by high biosecurity.

How to find an arrangement to best succeed the tripartite agreement is something for negotiations. We all recognise—the UK Government and, I think, the Irish and French racing interests as well—that what we had was of value, and we need to see how we can work. This is why the British Thoroughbred Industries Brexit Steering Group is collaborating with Defra officials. We absolutely need to see what we can do for a very important part of the rural economies of the Republic and our country.

The noble Baroness, Lady Parminter, rightly raised a number of points about the resource implications and so forth. My understanding of the sort of numbers under a new regime is that the five inspectors would need to be increased to 11—a doubling. All consignments of regulated—that is, high-risk—plants and plant products currently imported from the EU under the existing EU passport system would require pre-notification, to be accompanied by a phytosanitary certificate and subject to remote documentary checks in the event of exit without an agreement. This plays into a point that I emphasised and that the noble Baroness, Lady Jones of Whitchurch, acknowledged: this is precisely because neither we in this country nor the Republic want to have checks at the border. We think there are ways in which these matters can be checked. As we said in the previous debate, we should not be nervous of thinking about the best ways of heightening biosecurity. Making this the responsibility of a country’s plant health authority has that strength and imprimatur. If we import something from Italy, say, it will be the Italian plant health authority that has to signify the phytosanitary certificate. We should not be fearful of some elements of this new arrangement because they are about what we increasingly need to look at.

Animal Health, Alien Species in Aquaculture and Invasive Non-native Species (Amendment) (EU Exit) Regulations 2019

Lord Gardiner of Kimble Excerpts

Monday 13th May 2019 Lords Chamber

Moved by

[Lord Gardiner of Kimble]

That the Regulations laid before the House on 5 April be approved.

Motion agreed.