Environment Bill (Eleventh sitting)

Ruth Jones Excerpts

Thursday 5th November 2020 Public Bill Committees

[Dr Whitehead]

I beg to move amendment 99, in clause 26, page 15, line 31, at end insert “(including international environmental law)”.

Again, this it is a fairly straightforward amendment. For the sake of clarity and completeness, it would add half a line to the Bill concerning the monitoring under clause 26 by the OEP of the implementation of environmental law. Clause 26(1) states: “The OEP must”—again, “must”—

“monitor the implementation of environmental law.”

As we alluded to earlier in our proceedings, we are simply suggesting adding, “(including international environmental law)”, so that the OEP is required to have regard to what is happening in environmental law not only here in the UK, but elsewhere, for the greater elucidation of what is happening in environmental law in this country. The amendment would make it clear that that is a responsibility of the OEP. We think it would strengthen the position in terms of a light being shone on not just UK environmental law, but environmental law across the world.

[Ruth Jones (Newport West) (Lab)]

I rise to support the amendment. It is all very well having environmental law, but we must take account of international law as well. As we have heard in previous debates, air quality has no boundaries as such. We must also take account of the fact that international law will impact on the way we manage recycling, waste and so on. I therefore stand in support of the amendment.

[Leo Docherty]

I thank the hon. Gentleman for tabling the amendment, as it gives me the opportunity to clarify the OEP’s remit. The intention of the amendment is to include international environmental law within the remit of the OEP’s monitoring function only where it is relevant to the UK. However, the relevant international environmental law already falls within the remit of the OEP in three ways.

First, any domestic legislation that implements an international convention and meets the definition of environmental law—for example, the conservation of habitats and species regulations implementing the Bern convention on the conservation of European wildlife and natural habitats, and the EU habitats and birds directives—would already be in the scope of the OEP. Secondly, the OEP will be able to scrutinise our international environmental commitments where they are included in the environmental improvement plan, for example our commitments to the UN convention on biological diversity. Finally, the Secretary of State may ask the OEP’s advice when fulfilling the duty, under clause 20, to report on significant developments in international environmental protection legislation.

I hope that reassures the hon. Gentleman that the OEP has already been given a role in holding the Government to account for our international environmental commitments. I therefore hope that he will withdraw the amendment.

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[Dr Whitehead]

I am a bit bemused by the passage that the Minister has just read out. The process here is that the Minister is laying something before Parliament. That is all the Minister is doing, or might be required to do. I really cannot think why that affects the moving nature of the relationship or the question of iterative changes, which the Minister alluded to. It seems to me that that answer has actually dug the hole a bit deeper, in terms of what concerns us about the clause.

The clause relates to advising on changes to environmental law, which it should absolutely be the province of Parliament to have a good look at. If the clause is simply about the relationship between the OEP and a Minister, and the Minister can, at his or her pleasure, decide whether something goes before Parliament, although it is true that Parliament can, in theory, quiz the OEP separately about what it is doing, that requires all sorts of other devices to be put in place. The laying before Parliament of the advice and, most crucially, any response the Minister may make to that advice, would mean that Parliament had a reasonably automatic route to deciding what it wanted to do about those things.

Indeed, taking the clause at face value, we know that under some of the procedures in this place, it would be very difficult for MPs to find out what had gone on, particularly in terms of the Minister’s response to advice that the OEP provided. That response may be in the form of an internal communication, which could be revealed to Parliament only by quite assiduous work to try to get it on the public record. This seems to me a completely unsatisfactory formulation for that reason alone.

[Ruth Jones]

The shadow Minister is making an important point. The wording in the clause is

“if the Minister thinks fit”.

Again, the power is now vested in one person, and we are back in a situation in which, if it is a good Tuesday, the Minister may do it; if it is a bad Tuesday, he may not. This is where we need to take the subjectivity out. The objective advice that must be given by the OEP and published should then make its way naturally to Parliament, to ensure that it can be acted on.

[Dr Whitehead]

My hon. Friend is absolutely right. She emphasises that the proper relationship is between the OEP, the Minister and Parliament, not the OEP, the Minister and maybe Parliament. That is what this issue is about.

This is not quite the same as other issues that this Committee has considered, which were about the extent to which the Government may be trying to withdraw or reduce the powers of the OEP. Nor, indeed, is it a question of a simple “may” or “must”, because it goes to the heart of the need for that three-part relationship when it comes to changes to environmental law.

I am getting a little weary of pointing out these lacunae and various other things in the Bill. On this occasion, we do not want to divide the Committee, but I hope that the Minister has heard what we say about the relationship between the Committee, Ministers and Parliament, which it would be in the Government’s own interest to clarify, because opaque processes can become the cause of quite unnecessary tussles, misunderstandings and opposition. Simply making things open, transparent and clear will prevent those difficulties in most instances. If those difficulties can be compounded depending on whether the Minister has a good or a bad Tuesday, as my hon. Friend the Member for Newport West said, the chances of something happening that may not be to the advantage of the Government are also then compounded.

As I say, I am not seeking to divide the Committee, but I hope that the Minister will consider whether an amendment to the Bill at a future date might be appropriate to make matters clear. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 27 ordered to stand part of the Bill.

Clause 28

Failure of public authorities to comply with environmental law

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those would be public authorities carrying out that function. That would expand the definition in the Bill to match what is said elsewhere in the Bill about what a public authority consists of.

[Ruth Jones]

I am grateful for the opportunity to speak in support of the amendment. We are well aware that the terms “public authority” and “public body” are often used interchangeably, which can lead to a lack of clarity. We are concerned that “public authority” could be interpreted as meaning a smaller category of public bodies. Public bodies are sometimes, for the avoidance of doubt, explicitly listed in legislation as being encompassed by the term authority. For example, section 28G of the Wildlife and Countryside Act 1981 clarifies that authorities include

“any other public body of any description.”

This clarification is helpful for those reading only part of the Bill; it means that they do not need to read the whole Bill to understand a clause. It is important that we clarify what we mean by the term, so we welcome the amendment.

[Leo Docherty]

I thank hon. Members for their contributions. I agree that it is of great importance that the OEP should be able to hold public authorities to account, and that all parties should have certainty about its remit. I assure hon. Members, however, that the provisions in the Bill are sufficient to ensure both those things.

Regarding amendment 117, we have deliberately taken a broad approach to defining a public authority as

“a person carrying out any function of a public nature”,

subject to a number of specific exclusions. The same approach is used in a number of other Acts, including the Human Rights Act 1998 and, more recently, the European Union (Withdrawal Agreement) Act 2020. It is, therefore, an approach with which the courts are familiar.

The existing definition already covers UK Ministers and Government Departments, local authorities, arm’s length bodies such as the Environment Agency, and all other bodies that carry out public functions. It is therefore unnecessary to list specific types of public authority in the Bill, as they are already captured. Furthermore, by including the term “public body” without defining it further, this amendment would introduce a lack of clarity about who and what is covered by this particular new element of the definition.

I reassure the hon. Member for Edinburgh North and Leith that the Bill respects the devolution settlements, including the Scotland Act 1998. Scottish Ministers, the Scottish Parliament and any person carrying out devolved functions have been excluded from the remit of the OEP. The public authorities listed in amendment 191 are, therefore, already excluded from the remit of the OEP, to the extent that they are carrying out devolved functions, so it is not necessary to list them as excluded bodies for the purposes of clause 28. I support her intention of avoiding overlaps with the equivalent Scottish governance body, Environmental Standards Scotland. That is why we have appropriately sought to limit the OEP’s remit to reserved matters, while avoiding any devolved matters that would appropriately be dealt with by that body.

In conclusion, I hope that Members are reassured that the definition is fit for purpose. It both avoids overlaps with bodies carrying out devolved functions, and ensures that the OEP has oversight over all relevant public authorities. As such, I politely ask the hon. Member for Southampton, Test, to withdraw the amendment.

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[Ruth Jones]

Does my hon. Friend agree that the Bill cannot make up its mind whether the OEP is a strong body that stands for environmental rights or a puppy of the Government?

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[Ruth Jones]

I rise in speak in favour of the amendment. My hon. Friend has made an eloquent point about the steps so far. We seem to be teetering on a cliff edge. We have got as far as accepting that there is an issue, the problem has been highlighted and solutions have even been suggested, but the wording of the clause does not give us an actual solution. The public authority must rectify the failure, but that is not enshrined in law. We all know that if we want something to be done, it must be enshrined in law. “Put it in the Bill,” is our usual cry.

Some of us—those who have worked in health, for instance—well remember that Crown immunity used to be given to NHS buildings. Problems and solutions were identified, but there was never any enforcement because of Crown immunity. I am sure that the Government do not want that to happen with such an important Bill, and that is why we have tabled the amendment.

[Leo Docherty]

It is, of course, important that the OEP’s enforcement framework is robust. However, we do not consider that binding notices would be an effective or appropriate means of achieving that. Decision notices are an important part of the OEP’s enforcement framework. They allow the OEP to set out the nature of a failure and recommend the remedial steps that a public authority should take in response. If the public authority chooses not to follow the recommended remedial steps—for example, because it believes that it is correctly applying the law for which it is responsible—the OEP can refer the matter for an environmental review. We would expect the OEP’s decision notice to form part of its evidence submission in an environmental review, and for this evidence to be given appropriate consideration as the view of an independent body. This will be the most effective way for the OEP to address cases of non-compliance.

Furthermore, the provision for binding notices through this amendment would be inappropriate for three key reasons. First, if the amendment were accepted, the OEP would effectively be able to superimpose its own decisions in place of those made by the relevant authorities appointed or elected for this purpose. Secondly, current protections for third party rights in the environmental review process would be lost. That could be damaging for businesses and cause extremely unhelpful uncertainty. Thirdly, without provision for an appeals mechanism, the public authority would have no right to challenge the OEP’s judgments, other than making an application for judicial review. The enforcement framework set out in the Bill will ensure that cases are resolved as quickly as possible, with powers to overturn decisions resting with the courts, as is appropriate. I therefore ask the shadow Minister to withdraw the amendment.

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[Ruth Jones]

My hon. Friend is making an excellent point. Does he agree that, as various NGOs have also said, without an upper tribunal, the lack of expertise in the High Court could be a problem when determining such scientific, delicate and detailed matters?

[Dr Whitehead]

Indeed, my hon. Friend makes the point about specialist environmental expertise in a far better way than the Government did to the EFRA Committee. Among other things, the upper tribunal is not adversarial; it is, in effect, inquisitorial, allowing such expertise to come to grips with an issue in an atmosphere conducive to shining light on it, rather than the knock-down, drag-out fight between two sides of the High Court. The Government would be well advised to listen to her point carefully.

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[Dr Whitehead]

I hope that, after that plethora of votes, everyone knows where we have got to. I think and hope that I know, but we shall see whether I am speaking to the right amendment.

Amendment 121 would give the OEP’s relationship with the upper tribunal—in this case, the court—a greater amount of leeway over a remedy that could be granted by the court on judicial review. Clause 35(8) states that the upper tribunal—here it is the High Court—

“may grant any remedy that could be granted by the court on a judicial review other than

damages, but only if satisfied that granting the remedy would not—

(a) be likely to cause substantial hardship”,

and so on. The amendment would delete the second part of subsection (8), thereby enabling a remedy to be granted without that caveat on its operation. We think that would strengthen the proceedings. Similarly, amendment 80 would allow the upper tribunal to issue financial penalties where it thinks fit.

Amendment 184—this is important; I am particularly concerned about it—would allow remediation requirements, so that the net environmental position would be returned to where it was before the action took place. One important principle regarding environmental damage and various other activities is that such damage should not go unnoticed or be left by the wayside, and those who cause it should be required to put things back to their original state. If bodies undertake planning activity that causes environmental disturbance, they should be required to put something else in place or remedy the damage. The amendment would allow remediation requirements to be introduced, so that the offending body would be required to put the issue right. That important principle ought to be in the Bill.

[Ruth Jones]

Does my hon. Friend agree that although financial penalties are important, remediation is even more important? For instance, where trees with tree preservation orders have been cut down, contractors have decided to take the fine on the chin, while not doing anything about the trees. The remediation aspect is so important.

[Dr Whitehead]

Once again my hon. Friend hits the nail on the head. In many cases a contractor, or someone who has decided to undertake an action, may make a cold calculation about what they can achieve by cutting down a row of trees, or sawing branches off a tree, or whatever. Although they might face financial consequences, the net result could be to their advantage, so they will take that on the chin. However, the tree is gone, and the other things have not been remedied. The idea of having a remediation clause that a person who is thinking of doing something must take into account before they do it is an important step forward. As my hon. Friend says, that remediation requirement should be in the Bill and a power of the upper tribunal or the court.