Environment Bill

Lord Goldsmith of Richmond Park Excerpts

Consideration of Commons amendments
Tuesday 9th November 2021 Lords Chamber

Moved by

[Lord Goldsmith of Richmond Park]

That this House do not insist on its disagreement with the Commons in their Amendments 31A and 31B on which the Commons have insisted for their Reason 31D, and do not insist on its Amendment 31C in lieu to which the Commons have disagreed for the same Reason.

31D: Because the Bill and Amendments 31A and 31B make appropriate provision in relation to guidance and the independence of the OEP.

[The Minister of State, Department for the Environment, Food and Rural Affairs and Foreign, Commonwealth and Development Office (Lord Goldsmith of Richmond Park) (Con)]

My Lords, this is a momentous month for the environment. We are hosting the world at COP 26, the world’s best chance to reach agreement on the action needed to avert catastrophic climate change and support those already experiencing its effects. Huge global progress has already been made in this forum. Over 130 countries representing more than 90% of the world’s forests have committed to halt and reverse deforestation by 2030. We have secured an unprecedented $20 billion to protect the world’s forests. Financial institutions with assets worth nearly $9 trillion have committed to align with nature. We secured the commitment from the big multilateral development banks, including the World Bank, that they too will align their portfolios not only with Paris goals but with nature as well. And, crucially, we secured a commitment from the 12 biggest buyers of agricultural commodities—including China Oil and Foodstuffs Corporation—that their buying policies will be aligned with 1.5 degrees and our overall deforestation goals. Each of these commitments is new and unprecedented; combined, they are mutually reinforcing, and this represents a turning point in our relationship with the world’s forests. Our job is now to inject real accountability into the process and to ensure that these promises are kept in full. This landmark Environment Bill, which we hope is now so close to its conclusion, will be an integral part of that action.

Noble Lords will have seen that this Government have moved significantly on a number of the issues which your Lordships’ House insisted on at Third Reading. I will begin by discussing Amendments 31C and 75C, tabled by the noble Lord, Lord Krebs, and the noble Baroness, Lady Ritchie of Downpatrick, and Amendments 31A, 31B, 75A and 75B which have been re-tabled by my honourable friend Minister Pow in the other place.

I thank the noble Lord, Lord Krebs, the noble Baronesses, Lady Parminter, Lady Jones of Whitchurch and Lady Ritchie of Downpatrick, and my noble and learned friend Lord Mackay of Clashfern, for their work in this important area. I thank the noble Lord, Lord Krebs, in particular for his conversations with me and with the Secretary of State on the power in the Bill to offer guidance to the OEP. As a direct result of those conversations, there are a number of points that I would like to put on the record today, in the knowledge that ministerial statements in Hansard could be drawn on by the courts as a legitimate aid to statutory interpretation in the future.

The OEP is and must be an independent body capable of holding public authorities to account on their environmental responsibilities, including through the use of their enforcement functions. That is why the Government have given the OEP a remit and powers of unprecedented breadth in this Bill. In order for the OEP to work effectively, it must act strategically and take action only when there is an environmental and public interest in doing so. On this point, everyone is agreed.

As the Secretary of State is ultimately accountable for the OEP’s performance and use of public funds, the Government consider that this accountability power in Clause 24 is necessary to ensure that the body continues to use public resources effectively to achieve the greatest public good. However, I must be clear that the content of guidance is limited to the areas of the OEP’s enforcement policy listed in Clause 22(6). It cannot be used to direct the OEP as to the content of any report they might produce or any advice to the Government. Indeed, it cannot be used as a power of direction at all. It would also be inappropriate for the Secretary of State to issue guidance on specific matters relating to the enforcement of environmental law against the Secretary of State for Defra, given that there would be a conflict of interest.

I do not want to be disingenuous: the OEP would be expected to have regard to any guidance issued, but it retains the ability and discretion to make its own decisions and is not bound to act in accordance with the guidance where it has clear reasons not to do so. I know that the noble Lord, Lord Krebs, and others have previously raised concerns that the Secretary of State might be able to use guidance to preclude the OEP investigating a broad category of individual cases or subject areas, such as nuclear power stations. I must say unequivocally that it is our view that the power could not lawfully be used in this way.

Any guidance issued must be consistent with the duty in paragraph 17 of Schedule 1 for the Secretary of State to have regard to the need to protect the independence of the OEP. Any guidance that diverts OEP scrutiny away from entire policy areas, outside existing statutory steers on prioritisation, would not be in keeping with that duty. This is not a power that could be used simply to divert the OEP away from investigating issues that could be in some way inconvenient to government. The provision for guidance on how the OEP intends to exercise its functions means that the guidance will in its nature be on the OEP’s approach to these issues, rather than defining specific areas to prioritise or deprioritise.

The OEP will operate with a very high degree of independence, especially when it comes to making individual enforcement decisions. In exercising its discretion in individual cases, the OEP would need to have regard to all relevant factors, but ultimately must take all its decisions objectively, impartially and independently of government.

Furthermore, the Environment Bill already provides that the OEP should focus on cases that have national implications. Guidance could not be issued that goes against these existing provisions and could instead add further detail. However, it will remain up to the OEP, within the framework provided by the Bill and any guidance, to determine whether cases that have a discrete local impact also have national implications, or for some other reason have sufficiently broad or widespread impact to be considered serious, or to be prioritised, for the purposes of its enforcement functions.

It is important to note that the Secretary of State is also able to offer guidance on how the OEP should respect the integrity of other bodies and existing statutory regimes. With such a huge and broad remit, the OEP will be able to scrutinise all public authorities, including many expert scientific bodies. This ability will be important for the OEP to be able to take a broad view and identify systemic issues.

Although I am sure the OEP will be extremely effective, it will be a relatively small body with a broad remit. The decisions of organisations such as Cefas, for example, which employs hundreds of world-leading marine scientists, will be based on deep expertise and often highly technical scientific data. The OEP will need to be mindful of this in its own decision-making when scrutinising these bodies. It is important to get this balance right to maintain confidence and integrity within existing regimes, and guidance could help to address this.

We believe that this power is important to ensure accountability, so that the OEP can contribute to delivering environmental improvements in the way I think we all agree it should: by acting strategically, not just in the short term, but long into the future. I can also confirm that this Government will not issue guidance to the OEP before its initial set-up or before it has had the chance to develop its own enforcement policy.

I recognise the points that noble Lords have raised, which is why the Government previously reintroduced a provision for Parliament and the Northern Ireland Assembly to scrutinise any draft guidance before it is issued. I hope my assurances regarding what this power could and could not be used for, as well as the additional parliamentary scrutiny we have provided for, serve to reassure noble Lords about this provision.

Turning to Amendments 33B and 33C, I thank all noble Lords for their contributions on this topic, but in particular the noble Lord, Lord Anderson of Ipswich, for his detailed and continuously constructive conversations with me and my officials. On environmental review, the key area of debate has been the remedies available in the event that a breach of environmental law is confirmed by the court. At the heart of this issue has always been the fact that, through environmental review, the OEP will have the ability to bring cases to court outside standard judicial review time limits, potentially long after the decisions in question have been taken. For this reason, the Government have maintained that bespoke provision is necessary to ensure certainty and fairness for third parties who have acted in line with decisions made by public bodies, and to protect good administration.

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[Baroness Hayman of Ullock (Lab)]

My Lords, I will particularly address the amendments from the Government and in the name of my noble friend Lord Adonis on water quality, in Motions C and C1. First, I thank the Minister and Defra officials for their time in listening to our concerns throughout the passage of this Bill. While we welcome the government amendment to improve water quality, we must be clear that the Government did not want to include stronger provisions in this Bill to improve and protect our rivers and waterways, including from sewage discharges. We have the government amendment before us today because of the refusal of your Lordships’ House, Philip Dunne in the other place and in particular the noble Duke, the Duke of Wellington, to give up on campaigning to protect both our environment and public health. Once again, the Minister has been dragged back to debate this because people have been disgusted that the situation was allowed to continue. The Government truly brought the pong into ping-pong.

While the government amendment before us today does improve the Bill, noble Lords have said that they are finding it in some ways unsatisfactory, as it does not go far enough to address some of the concerns that have been raised today. The noble Duke, the Duke of Wellington, talked about the considerable public support for his amendment, including from water companies, which he said just want more public investment from the Government in order to improve the sewerage system. He also expressed concern that the government amendment is considerably weaker than his in some aspects. We strongly supported the Duke on this issue, and believe that his original amendment was better than the government amendment before us today, and it is disappointing that Government refused to just accept it. My noble friend Lord Adonis has now picked this up, and he clearly laid out his reasons for doing so: his concerns that discharges have been increasing; that enforcement has not been what it should be; and that this is partly down to cuts to the Environment Agency, which have reduced its capacity to both monitor and take action.

I will now draw particular attention to three concerns raised by my colleague Luke Pollard in the other place. First, on prosecutions—the noble Duke mentioned their lack—will the Minister commit to reviewing the system of fines and penalties? The current penalties clearly do not have the effect of stopping certain water companies form routinely dumping raw sewage into our waterways. Penalties must be meaningful so that they change behaviour, or they are pointless. Water companies and the regulator, Ofwat, have consistently failed to stop damaging discharges. They know they that they are currently allowed to discharge raw sewage only in exceptional circumstances, but take no notice, which is why penalties and fines must be reviewed. Southern Water had committed no fewer than 168 previous offences before being fined this summer.

Secondly, we need to strengthen the duty of Ofwat to take action, to give water companies a clear direction on targets, ensure that there is a priority to clean up the most polluting discharges, and have oversight on progress from the relevant parliamentary committees. The regulator should have environmental experts available to strengthen its decision-making.

Thirdly, can the Minister further clarify what is meant by “progressive reduction”—the timescales mentioned by my noble friend Lord Adonis? By when, and by how much? Yesterday, I attended COP 26, as mentioned by the Minister in his introduction. Much is being made there of the importance of putting nature and the environment at the centre of policy-making and legislation. We know that one consequence of climate change in the UK is likely to be heavier rainfall. Without progressive reduction being pinned down properly, we are a very long way away from seeing an end to this persistent pollution.

In yesterday’s debate in the other place, the Minister, Rebecca Pow, ran out of time to respond to these questions from my colleague, so I would be grateful if the Minister could take the opportunity to answer these points today. I also look forward to his reply to other concerns raised by noble Lords in this debate, including my noble friend Lord Adonis, and whether he can reassure the noble Duke, the Duke of Wellington, that there will be proper parliamentary oversight and progress on ending the practice of discharging raw sewage into the waterways, because without proper oversight on progress, it will, as I said, take a very long time to change this behaviour at all.

I also look forward to the Minister’s response to the questions from my noble friend Lady Quin and the noble Baroness, Lady Jones of Moulsecoomb, regarding the true cost of tackling this issue. If he cannot answer these questions, can he explain why the Government are refusing to commit to addressing these very real concerns, which we have raised time and again?

Noble Lords are right: the Bill is in a better place now than when it started, and that is mainly down to concerns raised by your Lordships. But it is a shame that the Government have not been able to completely accept today’s important improvements.

[Lord Goldsmith of Richmond Park (Con)]

I thank your Lordships for your contributions to this debate. This is a landmark Environment Bill, the benefits of which will undoubtedly be felt by future generations both in the UK and, as a result of, for example, our due diligence legislation and more besides, internationally. I thank your Lordships for the collaborative and expert manner in which you have approached this Bill. Your constructive support and knowledge have been invaluable in enabling the passage of this Bill and making it better than when it first came to this House.

I will begin by addressing points made by the noble Lord, Lord Krebs, whom I thank again for sharing his expertise, time and patience on this important issue, and for his words today. I am happy to reiterate my earlier statement, also in response to questions raised by the noble Lord, Lord Cameron, and the noble Baroness, Lady Jones, that, in exercising its discretion in individual cases, the OEP would of course need to have regard to a range of relevant factors but ultimately must take all its decisions objectively, impartially and independently of government. Furthermore, I am happy to confirm that the Government are committed to ensuring the operational independence of the OEP.

The noble Baroness, Lady Jones, asked whether, in preparing the guidance, we would consult the OEP. The answer is, of course, yes we would. She also asked whether the framework document that the Government will agree with the OEP will make explicit reference to the Government’s commitment to a five-year indicative budget ring-fenced within each spending review period. The answer is that the framework document will make explicit reference to the five-year indicative budget and Defra will provide a ring-fence within each spending review period, in line with previous government commitments. It will also add detail that will guide and give further clarity to the relationship between the OEP, Defra and the rest of government.

To answer the questions from the noble Baroness, Lady Ritchie, I assure her that Defra Ministers and officials continue to have very regular discussions with DAERA, as has my noble friend, who I see up in the Gallery now, as they have throughout the passage of this Bill. Northern Irish Ministers have consistently sought parity as far as possible between the two Administrations with regard to the OEP. I know that my friend, Minister Pow, will continue these discussions and will support Northern Ireland in setting up a fully independent OEP.

Turning to Amendment 33B on the environmental review measure, I reiterate that the changes made by the Government in the other place will provide discretion to the court to grant remedies if it is satisfied that it is necessary to prevent or mitigate serious damage to the environment or people’s health, and there is an exceptional public interest reason to do so. They also ensure that a high bar is still set for the granting of remedies where third parties may be affected.

I place again on the record my thanks to the noble Lord, Lord Anderson, for his important contribution to improving the Bill and the manner in which he has engaged with me and my officials. I am glad that my words have at least gone some way to reassure him sufficiently today.

I turn to Amendment 45B in the name of the noble Duke, the Duke of Wellington, and Amendment 45C tabled by Rebecca Pow on storm overflows. The Government’s new amendment in lieu will underpin the storm overflows measures in the Bill by requiring water companies to secure a progressive reduction—I will come to the definition of that in a moment—in the adverse impacts of their storm overflows. It will make our expectations unequivocal in law and enforceable with the full suite of sanctions available under the Water Industry Act 1991.

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[Baroness Neville-Rolfe (Con)]

I appreciate the new provisions for real-time monitoring, which are obviously a move forward, but how do they get added together to make sure that we are tackling the sewage issue? That is what I was concerned about.

[Lord Goldsmith of Richmond Park (Con)]

If the monitoring is done in the manner in which this legislation requires, that data will become immediately available, but it is for the regulators—indeed, the Government—to ensure that the data is processed and understood and that it informs next steps. It is hard to be more specific; that is the Government’s job and if the Government fail in their duties there are a number of other accountability mechanisms which we are introducing through the Bill—not least the OEP—to ensure that the Government do their job.

My noble friend Lady McIntosh asked about timelines. We have committed to review Schedule 3; I have put that on the record in the past, work has begun, and the review will report early next year.

I hope that I have answered the questions that were put to me today. I thank all those who have contributed to this debate and to the hours of debate since the Bill was introduced. It has had a challenging passage, but I have sincerely appreciated contributions—or most of them—from across the House and in the other place in support of the environment that we all cherish.

I once again thank all noble Lords who have tabled amendments throughout the passage. I also thank the stakeholders, who have used their voices so effectively. I particularly thank my counterparts on the opposition Benches—the noble Baronesses, Lady Jones and Lady Hayman, and the noble Lord, Lord Khan, and the noble Baronesses, Lady Parminter and Lady Bakewell, and the noble Lord, Lord Teverson. I very much take the point made by the noble Baroness, Lady Parminter, about the pong in the ping-pong, but the work—

[Baroness Parminter (LD)]

It was the noble Baroness, Lady Hayman.

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[Lord Goldsmith of Richmond Park]

I am so sorry—I have just transferred that brilliant joke to another party. It may have been a brilliant joke but there was some truth in it—many a truth is told in jest, as someone said. The noble Baroness, Lady Hayman, makes a very good point, but I genuinely believe that the work of this House has removed much of the pong, and the ping-pong has, as a result, improved the Bill considerably. I genuinely thank her and others across the aisle for the work that they put into this.

I equally thank my exceptional private office staff, who have worked above and beyond the call of duty. This has been a very long process; it is one of the biggest Bills we have had to deal with. They have been working—in some cases—around the clock and I am very grateful to them and of course to the Bill team, who have been absolutely superb and extraordinarily patient, not just with colleagues in this House but with Ministers. I really appreciate their efforts and I look forward—as I know many in this House do—to the Bill continuing the crucial work that we have already begun to restore our appallingly depleted natural environment, improve the quality of our air and water, and end the scourge of plastic waste pollution. I commend this Motion to the House.

[Lord Krebs (CB)]

My Lords, I thank all those who have taken part in this debate and will reiterate something that was said at earlier stages of the Bill. The amendments I have been involved in, and many of the others, have been genuinely across all groups, and it has been a particular pleasure for me to work not only with the noble Baronesses, Lady Jones of Whitchurch and Lady Parminter, but with colleagues on the Conservative Benches: the noble and learned Lord, Lord Mackay of Clashfern, the noble Lord, Lord Duncan of Springbank and others. The concerns we have expressed are not partisan: they are genuine concerns about wanting to improve the Bill and protect the environment for our grandchildren and generations to come.

I also thank the Minister. In his reply, he did indeed utter the words I was hoping he would: namely, that the Government’s intention is to protect the operational independence of the OEP. I am very grateful to him for confirming that.

In concluding, I think that the noble Lord, Lord Cormack, said it far more eloquently and succinctly than I could. We have worked hard to try to improve the Bill and we have made significant gains, but there comes a point at which we say, “Enough is enough. We have done the best we can. We have brought our experience and expertise to bear on the Bill and we think we have got about as far as we can. It may not be perfect, but it is better than it was when we started.” On that basis, I beg leave to withdraw Motion A1.

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Moved by

[Lord Goldsmith of Richmond Park]

That this House do not insist on its Amendment 33B to which the Commons have disagreed, and do agree with the Commons in their Amendments 33C and 33D in lieu.

33C: Clause 37, page 22, line 25, leave out from “if” to end of line 28 and insert “Condition A or Condition B is met.
(8A) Condition A is that the court is satisfied that granting the remedy would not—
(a) be likely to cause substantial hardship to, or substantially prejudice the rights of, any person other than the authority, or
(b) be detrimental to good administration.
(8B) Condition B is that Condition A is not met but the court is satisfied that—
(a) granting the remedy is necessary in order to prevent or mitigate serious damage to the natural environment or to human health, and
(b) there is an exceptional public interest reason to grant it.”

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Moved by

[Lord Goldsmith of Richmond Park]

That this House do not insist on its Amendment 45B to which the Commons have disagreed, and do agree with the Commons in their Amendments 45C and 45D in lieu.

45C: After Clause 78, page 73, line 29, insert the following new Clause—
“Reduction of adverse impact of storm overflows
In Chapter 4 of Part 4 of the Water Industry Act 1991, after section 141EB insert—
“141EC Reduction of adverse impact of storm overflows
(1) A sewerage undertaker whose area is wholly or mainly in England must secure a progressive reduction in the adverse impact of discharges from the undertaker’s storm overflows.
(2) The reference in subsection (1) to reducing adverse impacts includes—
(a) reducing adverse impacts on the environment, and
(b) reducing adverse impacts on public health.
(3) The duty of a sewerage undertaker under this section is enforceable under section 18 by—
(a) the Secretary of State, or
(b) the Authority with the consent of or in accordance with a general authorisation given by the Secretary of State.””

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Moved by

[Lord Goldsmith of Richmond Park]

That this House do not insist on its disagreement with the Commons in their Amendments 75A and 75B on which the Commons have insisted for their Reason 75D, and do not insist on its Amendment 75C in lieu to which the Commons have disagreed for the same Reason.

75D: Because the Bill and Amendments 75A and 75B make appropriate provision in relation to guidance and the independence of the OEP.