House of Lords
Monday 28 June 2021
The House met in a hybrid proceeding.
Prayers—read by the Lord Bishop of Gloucester.
Arrangement of Business
My Lords, the Hybrid Sitting of the House will now begin. Some Members are here in the Chamber, others are participating remotely, but all Members will be treated equally. I ask all Members to respect social distancing and wear face coverings while in the Chamber except when speaking. If the capacity of the Chamber is exceeded, I will immediately adjourn the House.
Oral Questions will now commence. Please can those asking supplementary questions keep them no longer than 30 seconds and confined to two points? I ask that Ministers’ answers are also brief.
Covid-19: Hospital Patient Referrals
My Lords, there was limited testing capacity in March and early April 2020 and this was prioritised to those with symptoms. On 15 April 2020, the adult social care action plan instituted a policy of testing for all patients prior to discharge to a care home. All clinical guidance issued by the department, Public Health England and the NHS received clinical sign-off, following the best scientific advice available at the time.
My Lords, I want to understand whether the deaths in care homes, which were absolutely tragic, were down to the incompetence of the Government or just a disregard for the elderly. We all understand the need to free up acute beds in hospitals and it has been long understood that the safe way to do that is through isolation. If that was known by the care homes, were the individuals Covid positive or not being tested? Can the noble Baroness agree to publish all the emails, letters and other correspondence with the care home sector so that we can all see what the Government were doing at a particular time during the pandemic?
My Lords, prior to the publication of the Government’s hospital discharge service requirements on 19 March last year, engagement was sought from, for example, NHS England, Public Health England, Care England and the Local Government Association—I could go on. I am not sure about the practicalities of everything that the noble Lord requested, but I reassure him that proper engagement has been undertaken with the sector throughout the pandemic.
My Lords, I think that this Question is asking what proportion of those referred to residential accommodation were tested for Covid-19 and, therefore, what proportion were not. The Question is not asking what proportion of those tested were positive and negative—and testing should be required of all care home staff. When hospital discharge guidance was released on 19 March, why was there no requirement to test people for Covid-19 before release and, if positive, to segregate them from those testing negative? However, 30% of those tested for Covid-19 while in hospital did not receive their results when they left. This was particularly problematic for care homes, given the transmission risk. Why did 30% of those tested while in hospital not receive their test results before they left?
My Lords, my noble friend has asked a number of questions. The policy shifted post 15 April and that was based on our understanding of asymptomatic transmission. It was also based on the availability of testing capacity at the time. Prior to that date, those who were symptomatic were tested and every effort was made to ensure that those results were also passed on to the care homes so that they could take the appropriate action needed.
My Lords, given the awful experiences that residents of care homes had when they were deprived of all contact with their loved ones while patients were being discharged from hospital without having been tested, could the Minister assure the House that there is absolutely no prospect now of patients being transferred from hospital into care homes without having been fully tested and fully vaccinated?
My Lords, I can absolutely make that assurance in the case of testing. In the case of vaccination, there may be individual circumstances for a patient that make vaccination not appropriate at that point—for example, if you are symptomatic with Covid, you may not then be vaccinated. If you test positive, you are not discharged into a care home setting; you are discharged into an approved setting that has the right processes in place so that you can get the care that you need while being appropriately isolated.
My Lords, while the Minister is doing a really excellent job at answering these questions, it does raise the question as to why the Minister responsible—the noble Lord, Lord Bethell—is in hiding. Is it because, unlike the noble Baroness, he is one of the guilty people responsible for the care home scandal, or is it because of his links with Gina Coladangelo?
My Lords, given the number of times my noble friend has appeared at this Dispatch Box to answer questions from noble Lords during this pandemic, the noble Lord’s question is without any merit. I am sure that he will welcome the fact that he will see my noble friend at this Dispatch Box two or three times tomorrow.
My Lords, in recent weeks, Ministers have quoted from the Public Health England report published in May, which claimed that only 1.6% of outbreaks in care homes potentially came as a result of hospitals discharging patients who had Covid—this despite the report having been widely criticised by independent experts in the sector as presenting an unrecognisable picture of the impact that hospital discharges in the absence of testing had had. Last week, the noble Lord, Lord Bethell, in response to a question from the noble Baroness, Lady Wheeler, said that he was not aware that the report was being revised. Will the noble Baroness now commit to investigating this issue properly and publishing the outcome?
My Lords, I will absolutely take that point away. My understanding is that there is the Public Health England report, while a number of other retrospective studies in Scotland and Wales have looked specifically at the impact of discharge policies. Although there has been a slight variation in the policies implemented across the four nations and the evidence is not as yet conclusive, the studies have indicated that discharge policies were not responsible for a significant number of outbreaks in care homes in the UK. We look at a number of pieces of evidence and we always look to make sure that that evidence is up to date. I will take back the noble Baroness’s specific point on the revision of that data and see what I can write to her in response.
My Lords, we know that the Government’s interpretation of throwing a protective ring around care homes is not what most of us would see as protection, nor was there upfront recognition from the start of the pandemic of the vulnerability of care home residents. The extra resources from the infection control fund have been crucial in helping care homes to keep going and deal with their extra PPE, staffing and huge administrative costs, but it runs out on Wednesday, as the Minister will know, with only an obscure notice on the government website on 15 June to announce its demise. What are care homes to do now with their ever-escalating costs, infections increasing and a minority of care home workers not vaccinated?
My Lords, we continue to support the social care sector in its efforts to control infections. The noble Baroness raised the question of vaccinations, which will be crucial in protecting care homes. We have laid the statutory instrument that will require all members of staff working in CQC-approved care homes to get their vaccination.
My Lords, I do not agree with that assessment of the situation. We have been providing support to care homes since the start of this pandemic, including ensuring that proper staffing is in place to help with, for example, infection control methods.
What consideration have the Government made of utilising currently unused NHS land and buildings for care accommodation? This type of hospital accommodation, similar to that in Scandinavia and other parts of continental Europe, has been a better solution than discharging hospital patients into care homes and other residential accommodation, especially given the challenges of testing for Covid-19 in early 2020.
My Lords, in our response to the pandemic, we have introduced a policy of designated settings, where if someone in hospital who is otherwise ready to be discharged tests positive for Covid, they can be discharged to a designated setting. More broadly, the noble Baroness is right: the use of step-down accommodation can be very useful in discharging people from hospital to social care. The point about NHS land is, I am sure, one that we will want to take away.
My Lords, SAGE minutes from the end of January 2020 identified that asymptomatic cases were emerging, so why, out of half a million tests carried out until mid-April 2020, were the vast majority of the 25,000 people discharged from hospital to care homes not tested?
My Lords, while there was an acknowledgement of the potential risk of asymptomatic transmission, there was no scientific consensus on the matter. In fact, the WHO did not recognise asymptomatic testing for a number of weeks after that point. However, the first group prioritised for asymptomatic testing was those who were going to be discharged into care home settings.
Arctic: Security and Co-operation
To ask Her Majesty’s Government what assessment they have made of security concerns about Russian military build-up in the Arctic; and what progress was made at the meeting of the Arctic Ministerial Council in Reykjavik in May to ensure co-operation on Arctic issues.
My Lords, the integrated review states that the UK’s primary Arctic objective is to maintain high co-operation and low tension, as an Arctic Council observer. We welcome the commitment to maintaining peace, stability and constructive co-operation made by all Arctic states in Reykjavik in May. Russia, as an Arctic nation, has significant presence in the region. However, we are concerned by Russia’s expanding Arctic military footprint.
My Lords, the NATO Secretary-General recently said that Russia is trying to control the traffic travelling through the new sea lanes in the Arctic as they are opened up by melting ice. He also said that NATO should assert its rights to freedom of navigation in the area. In the light of the events last week in the Black Sea, what steps are the Government taking to assert the right of freedom of navigation in the Arctic? Does the fact that Russia now chairs the Arctic Council for the next two years help or hinder co-operation on Arctic issues?
My Lords, my noble friend is quite right that we have seen increased levels of activity, and it is right that we work with key partners to ensure that a peaceful, stable and well-governed Arctic underpins all our policy. That is a priority for the UK Government, and we support the legal frameworks in the Arctic and the Arctic Council. I assure my noble friend that we are working with NATO and other partners to respond to events in the Arctic, as it is in everyone’s interest to keep the Arctic peaceful and co-operative. Of course, recent events have demonstrated the need to stand up for the laws underpinned by UNCLOS.
My Lords, few institutions exist to manage the new security risks of civilian and military activity in the Arctic. The Arctic Council and other effective forums either forbid or do not touch on security, and since 2014 the Arctic Security Forces Roundtable has excluded Russia. Major Arctic players are nuclear powers and adversaries, with multiple facilities and nuclear armaments there. Russian and European Governments have called for the creation of a new dialogue among Defence Ministers, and Presidents Putin and Biden discussed how they can ensure that the Arctic remains a region of co-operation, not conflict. Where do our Government stand on the need for inclusive discussions on security, and what are we doing, if anything, to advance that?
My Lords, I agree with the noble Lord that it is important to retain dialogue with all key partners and key players involved in the Arctic, and as an observer at the Arctic Council we have strongly claimed and talked of the importance of convening all Arctic states inclusively for retaining a peaceful, stable and well-governed Arctic. We attend the Arctic Council ministerial meeting and we are looking to work constructively with Russia under its stewardship, particularly as we look at wider issues beyond security in the lead-up to COP 26. However, I hear what the noble Lord says, and I can assure him that we are working with key international partners to ensure that the Arctic remains a peaceful and stable part of the world.
My Lords, can I press the Minister a little further? Last week, the leaders of France and Germany were calling for the European Union to engage more closely with Russia. Do Her Majesty’s Government believe that, in the context of the Arctic, we should be working more closely with Russia, or do we need to view Russian build-up in the Arctic with suspicion?
My Lords, as I have already said, we are concerned by the recent increase in activity by Russia in the Arctic region. However, I assure the noble Baroness that we look forward to working with all Arctic states, including Russia, particularly on important issues such as environmental protection and sustainable development, during the Russian chairmanship of the Arctic Council during 2021 to 2023. However, security remains a concern, and we will continue to work with partners in defence and in NATO.
My Lords, the Government are to be commended for the robust stance taken last week in sanctioning HMS “Defender” to passage, perfectly legitimately, through the international separation zone waters past Crimea, and for us not to succumb to Russian bullying and lying. Does the Minister agree that we should be acting in a similarly robust way in the north, allowing our warships to operate in international waters in the Arctic and the Barents Sea and not allowing Russia to claim such waters as their private seas by default—which will be doubly important as the north-eastern passage to the Far East becomes more accessible? I feel that the Minister’s answer to the noble Baroness, Lady Anelay of St Johns, was not sufficiently robust on that matter.
I assure the noble and gallant Lord that we recognise that—if I may be robust—the actions that we took in the waters that we believe to be the territorial waters of Ukraine demonstrated how we stand very firm in ensuring the right to sea passage, ensuring that the traffic separation schemes that operate are equally recognised. Equally, we will continue to exercise the right of innocent passage in accordance with the UN Convention on the Law of the Sea wherever that may take place. As the noble and gallant Lord will be aware, that is enshrined in Article 19 of that law and we will seek to uphold it. Our recent activities in Ukrainian territorial waters show the robustness of our approach in this regard.
My Lords, modelling has shown that the Arctic sea ice could well disappear by the summer of 2035; certainly, the sea lanes will be completely different from what we currently have. Where most of us see a disaster, global powers see that as an opportunity to secure security, political and commercial interests. Can the Minister say exactly what our policy now is, looking back at the 2018 UK Policy Towards the Arctic paper, which said that we should be exploring commercial opportunities too? How does that rest with the recent Arctic Council ministerial meeting?
The noble Lord is quite right to point towards the 2018 Arctic policy framework. We remain very committed to its core principles of respect, co-operation and leadership. Equally, however, as I have already alluded to, with temperatures rising three times as fast in the Arctic, we also believe that it is important that we focus on the Arctic, as we will at COP 26, to ensure not only that the Arctic remains a peaceful, stable and well-governed part of the world but that we also seek to tackle the important issues of climate and shared biodiversity. The current statistics are quite concerning, with sea level temperatures in the Arctic rising three times as fast as those in the rest of the world. As a near neighbour, we need to be interested and engaged.
My Lords, I welcome what the Minister just said about climate. The NATO Secretary-General identified climate change as a crisis multiplier, referring not least to the Russian attempt to define the northern sea route as an historically shaped national transportation corridor. There is a clear intention not just to take control of the route but of course to exploit the Arctic, with plans for huge oil extraction, which will only add to the problems of climate change. Can the Minister reinforce the pressure on all states with an interest in the Arctic not to worsen the climate crisis that we are facing by exploiting oil reserves that previously have been unexploitable?
My Lords, I agree with the points made by the noble Lord, and we will be working with key partners to ensure that the very areas that he just highlighted remain a key part of our focus in the build-up and planning for COP 26 when we discuss issues in and around the Arctic region.
My Lords, it was good to see the recent defence Command Paper commit the UK to funding the next generation of nuclear submarines, which will give the Royal Navy vital capability in this region into the latter half of the century. Is the Minister in a position to confirm, as reportedly set out in recent RN planning papers, that these submarines are expected to incorporate the Atlantis hybrid underwater capability concept, based on a crewed mother ship in tandem with remote autonomous uncrewed platforms?
My Lords, I was deeply privileged to be on board HMS “Trenchant” as she broke up through the ice in the Arctic in 2019, an event that marked the return of the Royal Navy to underwater operations under the ice after an absence of some 10 years. Given that only last week the Russian Navy launched its latest submarine, increasing its inventory in the area, can my noble friend simply reassure me that we will now maintain this under-the-ice capability?
My Lords, my noble friend speaks with great insight and experience of this matter, and I can give him that assurance. We are of course very proud of the Royal Navy’s sub-surface capabilities, which is why the defence Command Paper emphasises our commitment and ambition in this area. My noble friend will know better than me from his previous experience that the sensitivities of submarine operations mean that I cannot go further. However, I hope my reassurance satisfies him with regard to our commitment in this important area.
North of England: Rapid Mass Transport System
My Lords, the Government have thoroughly investigated whether our forthcoming major investment in connectivity between northern cities should be maglev rather than rail. We concluded that rail remains the best option for a number of reasons, the most important being that new conventional rail infrastructure can better be integrated into the existing network.
My Lords, maglev is a great British invention increasingly deployed in Asia for high-speed travel. As our world-beating British tunnelling engineers have shown, constructing railways in-tunnel can be cheaper than constructing them on the surface, provided that it stays in-tunnel. However, it seems that every proposal for maglev that comes from the Department for Transport is rebuffed. Can my noble friend explain why her department is so wedded to a 200 year-old technology that, when constructed on the surface, can both cost more and be very annoying for local voters?
I am sure all noble Lords will agree that, just because something is old, that does not mean it is useless. We must look at all technologies, and that is precisely what we do. My noble friend makes an important point in saying that systems around the world use this, but just one operational high-speed system does so at the moment: the Shanghai City maglev. There are many others operating at lower speeds—that is, less than 100 mph—and obviously, there is one in construction in Japan, but it is coming up against some cost pressures.
I can reassure the noble Lord that the Government are considering all options as part of the integrated rail plan and of course, Northern Powerhouse Rail is a very important part of that. Once the IRP is published, Transport for the North will submit a business case consistent with policy and the funding framework.
My noble friend’s idea of an underground magnetic railway between northern cities certainly has a strong attraction, especially following Elon Musk’s proposal for 1,000 mph trains in the United States, and especially coming from a former deputy chair of Transport for London. However, as Transport for the North has said, our aims in the north should be to improve the frequency, capacity, speed and resilience of our transport system. Can my noble friend go a little further in telling us, in a realistic way, how the Government intend to facilitate those aims in the near future?
The Government are working extremely hard on setting out plans as to how we will improve connectivity in the north. As I mentioned previously, the integrated rail plan will be published soon and will bring together the benefits of not just High Speed 2 but Northern Powerhouse Rail and other very significant projects across the north. Of course, our investment in traditional rail and upgrading and improving our current lines also continues.
My Lords, what the north-east needs is not an underground line but investment in the East Coast Main Line, which, according to LNER, does not have the capacity even to accommodate the service that it provided up to 2019. How can it be consistent with government policy to halve the daytime service from Berwick-upon-Tweed to London and the major cities, reducing it to a two-hour gap between trains with a longer journey time? This is the railway going backwards, is it not?
I accept that there are capacity constraints on the East Coast Main Line, which is why we are investing more than £1.2 billion to upgrade it. On 11 June, LNER launched a consultation on the new proposed timetable for the East Coast Main Line from May 2022. I encourage all noble Lords who have an interest in the East Coast Main Line to respond to it.
My Lords, if it is concluded that what we really need is a strategic rail link between not just Leeds and Manchester but Middlesbrough and Liverpool and all major towns in between to improve connectivity and boost productivity, how likely is that to happen and how much money will the Government allocate to it?
I can reassure my noble friend that we are of course looking at connectivity across the regions. A number of urban centres need to be connected, and it is really important that we make sure that towns and villages are connected via local transport to those point-to-point systems.
My Lords, I have long been a supporter of improving our strategic rail network, but I now wonder whether we face a mid to long-term future in which electric vehicles incorporating artificial intelligence within intelligent connected road networks will become the de facto mode of speedy, seamless door-to-door travel. Is the Department for Transport contemplating and investigating this possibility?
My Lords, I suspect that it will not be an either/or situation in the future, as indeed it is not now. We are actively considering opportunities for automation and AI. We want to see the safe development and deployment of self-driving vehicles. The Government have the Centre for Connected and Autonomous Vehicles, which is looking at developing regulations, investing in innovation and skills and engaging with the public, because it is important that we take them with us.
My Lords, it still strikes me as ironic that, although the UK invented maglev, Asia has made far greater and more imaginative use of this high-speed technology. I worry about us being too risk-averse in refusing to keep it on the table. Can I press the Minister perhaps less on the sci-fi possibilities of innovative technology solutions—although I do find them exciting—and more on the concrete plans to bring about high-speed connectivity between northern cities, which is crucial for levelling up? Can the Minister assure us that urgency and speed will be deployed rather than emulating HS2, which has to be the slowest high-speed project in the world? Surely the cost challenges of maglev in Japan are not worse than those of HS2 here.
I, too, am extremely excited by technology. The noble Baroness said that there has been widespread take-up of maglev technology across Asia, but that is not the case. The high-speed system is up and running in Shanghai at the moment, but China has now decided to invest in conventional rail rather than rolling out a large number of high-speed maglev systems. As I have mentioned many times, the Government are considering connectivity across the north and this will be set out in the integrated rail plan.
Can the Minister confirm in the light of her earlier answers that the Government do not know when the Northern Powerhouse Rail project, first promised by the then Chancellor of the Exchequer in 2014, will be approved, when its route plan will be made clear or when its promised infrastructure work will actually start? Assuming that is so—I think the Minister has been telling us that—can she at least assure us that work on the construction of Northern Powerhouse Rail will take priority over the start of work on the Prime Minister’s latest project: the construction of a new royal yacht?
I think that that is a rather extreme assessment of what I have said so far. I reiterate that the integrated rail plan must come first. Without it, it is pointless having a plan for Northern Powerhouse Rail because, of course, the whole point is that everything has to be integrated. As I said previously, we will work with Transport for the North, which will submit the business case for Northern Powerhouse Rail. Once we have received that, we will be able to set out how the project will go forward.
Does the Minister acknowledge that continued speculation about the future of Northern Powerhouse Rail and the issuing of new timetables by the East Coast Main Line, which reduced rail links for northern cities, simply serves to undermine confidence in government promises to level up and therefore reduces the likelihood of private sector investment in northern cities?
The absolute priority for this Government is to get it right. Endless amounts of pressure—questions such as “When will it be published?”—is probably not particularly helpful and leads to an awful lot of speculation. As I have said previously, we are taking due consideration of what stakeholders are saying and we are working very hard to come up with a robust, deliverable plan. That is exactly what this Government are going to do.
My Lords, the Minister is right about the Shanghai maglev, which I have been on. It is very fast and very noisy, but the technology, and therefore the costs, are very tight, because the track has to be kept within plus or minus half a millimetre in both directions, vertical and horizontal. She is absolutely right to reject it and I hope that the Government stick to their promises.
Now we are all very jealous—I too would love to go on that maglev. The noble Lord makes an important point: it is not just about the cost of infrastructure, but of operation, because it has a very high electricity consumption and can therefore be more costly to operate. I know that the Japanese system will be using superconducting electromagnetics, which should be cheaper but, although maglev has some great applications, it is not applicable everywhere.
Marriage and Religious Weddings
To ask Her Majesty's Government what progress they have made towards their commitment in the Integrated Communities Strategy Green Paper, published on 14 March 2018, to “explore the legal and practical challenges of limited reform relating to the law on marriage and religious weddings”.
My Lords, the law regulating legal marriage ceremonies developed over 150 years without systematic reform, so any changes present both legal and practical challenges. That is why the Law Commission is reviewing the law and will report later this year. A separate Nuffield Foundation study, also due to report this year, will investigate why marriage ceremonies occur outside the legal framework in England and Wales. The Government will consider both reports carefully.
My Lords, I remain deeply concerned, because there has been no evidence of any meaningful progress since I first raised these issues over 10 years ago. As the Muslim Women’s Advisory Council told me recently, although the plight of many Muslim women in this country is well-known,
“their cry for help is ignored.”
The Government have continually failed
“to enshrine the rights of Muslim women who do not yet have the protection of legal marriage.”
Will the Minister at last give an assurance that legislation will be introduced, as a matter of great urgency, to ensure that religious marriages are also legally registered?
My Lords, I am aware of the noble Baroness’s work in this area and the Private Members’ Bills she has brought forward in the past. The offence set out in her Private Member’s Bill is one of the potential options on which we are working, but any change in practice must be based on the facts on the ground. We are doing work with the Nuffield Foundation, the Law Commission is looking at this area and we have met with Aina Khan from Register Our Marriage. While I cannot give an assurance on legislation, I can give an assurance that this has a high priority and we are looking at it with real care.
My Lords, during the passage of the Domestic Abuse Bill, now an Act, your Lordships discussed how best to protect migrant victims of abuse. Will the Minister assure me that any reforms, such as those being discussed here today, will safeguard migrant women and children, who are often particularly vulnerable?
My Lords, the right reverend Prelate is right that the position of migrant women and their children, in particular, is of real concern. As we saw in the domestic abuse debates, those groups can be subject to particular intimidation and abuse. We will, therefore, consider their position in any legislation.
My Lords, a Channel 4 survey found that six in 10 Muslim women, who had had traditional Islamic weddings in Britain, are not legally married—a point made by the noble Baroness, Lady Cox. Of these, over a quarter— 28%—are not aware that they do not have the same rights they would with a legally recognised marriage. Does the Minister not agree that this is an issue of equal rights for women? May I press him on how the Government will safeguard the rights of Muslim women and ensure that the rule of law is upheld?
My Lords, my noble friend is right: if you are not legally married, under the law of England and Wales, you have a significantly disadvantageous position on divorce and on death. The position is simple: there is only one law in this country, the law of England and Wales. That proposition can be traced back to Jeremiah’s letter to the Babylonian exiles. There is no separate system of law in this country.
My Lords, I declare an interest as the chairman of the National Commission on Forced Marriage. I ask the Minister to bear in mind that any relaxing of the requirements of marriage might have the unintended consequence of not identifying a potential forced marriage.
My Lords, I respectfully agree with the noble and learned Baroness that, in seeking to update marriage law, we must ensure that we do not weaken forced marriage safeguards. Indeed, we criminalised that in 2014. I know that the Law Commission is looking at these issues most carefully.
Can I just clarify my previous answer, before the Advocate-General for Scotland has a go at me? When I said “this country”, I was referring to the law of England and Wales; the law of Scotland is a separate matter.
My Lords, the 2015 review by the noble Baroness, Lady Casey, said that, as of 2015, there were up to 100,000 sharia marriages in the UK,
“many of which are not recognised under UK laws and leave women without full legal rights upon divorce.”
Her review warned that this was worrying in a group with lower levels of female employment and English language. Crucially, the noble Baroness said:
“The potential for women … to find themselves in what they believe to be a binding commitment, be economically and socially dependent on their spouse, and yet have no legal marriage status, is worryingly high.”
The Minister said that this issue is a very high priority. That report was six years ago. When did it become a high priority and what have the Government done in those six years?
My Lords, the noble and learned Lord knows that it is a high priority, because this is one of the issues that both the Law Commission and the Nuffield Foundation are looking at. We have also looked at the sharia review. As I have said, our position is that we want to make sure that people are properly protected, though I would suggest that it is as much a matter of education as it is of legislation.
My Lords, numerous independent reports, including those commissioned by the Government, have confirmed that some sharia councils embed discrimination against women, including against those women who use sharia council services on matters of marriage and divorce. Given that countless women are suffering as a result, may I press my noble friend the Minister for an assurance that we will see government legislation sooner rather than later?
My Lords, people may choose to abide by the interpretation and application of sharia principles if they wish to do so—that is a matter of religious freedom—provided that their actions do not conflict with the national law. But, importantly, all individuals retain the right to seek a remedy through the English courts in the event of a dispute. For these purposes, the law of England and Wales in relation to the inheritance of property will prevail. We are looking at legislation, and I will of course update the House and my noble friend as and when we reach a decision.
My Lords, does the Minister agree with the words of a Christian hymn that
“New occasions teach new duties; Time makes ancient good uncouth”,
and that religion and religious teachings should be interpreted in the context of today’s times and the recognition of full gender equality? Does he agree that the Government’s continuing reluctance to stand up for the rights of Muslim women and girls is not only a betrayal of government responsibility but an insult to the fair name of Islam?
My Lords, I think the theological point put to me will take an answer that is probably longer than the allotted time, but I am happy to consider it further. However, I reject the proposition that we are not concerned about the rights of Muslim women and girls. The history of the work in this area, whether on forced marriage or indeed the matters we are discussing this afternoon, would indicate the opposite.
My Lords, I do not think anybody could dispute my noble friend’s personal commitment, but this is taking a very long time. Can he tell the House what line the Government will take on the Private Member’s Bill from the other place which suggests that the minimum age for marriage should be 18?
My Lords, I think my noble friend will have seen my letter to various groups on that point. Marriage at 16 and 17 has the significant risk of people being forced into marriages and their life chances reducing. Therefore, my noble friend can take it from me that we will be looking very carefully at the Bill introduced by the Member for Bromsgrove, who now appears to be otherwise occupied.
My Lords, I am sure the Minister believes that there should be equality among religions in relation to divorce, and that the law should bring justice to women who are mistreated by religious husbands and religious courts. So will he ensure changes to the Matrimonial Causes Act 1973, so that the court can refuse to finalise a civil divorce until an Islamic religious divorce has been obtained, if unfair pressure is being used in the religious proceedings? This would bring Islamic divorce in line with the Jewish get.
My Lords, the premise behind the question of the noble Baroness is that the bars to effective relief are the same in Judaism and Islam, but that is not in fact the case. As I understand it, it is significantly easier for a woman to obtain a divorce in Islam than it is for a woman to facilitate or obtain a divorce in Orthodox Judaism. Therefore, the Act that the noble Baroness refers to—I believe it is Section 10A—would not have the same advantageous effect in Islamic marriages as it does in Orthodox Jewish marriages.
NHS Test and Trace
Private Notice Question
My Lords, NHS Test and Trace currently provides 6.5 million virus tests each week, with more than 80% of in-person test results received within 24 hours. It successfully traces 92% of positive cases and 90% of their identified contacts, with more than 80% of contacts reached within 48 hours of someone reporting symptoms. Test and trace is continuously improving the speed and reach of its services and further enhancing the role of local authorities in community testing and contact tracing.
My Lords, the Innova lateral flow test purchased by the Government without open competition at a cost of more than £3 billion was last week described by the US Food & Drug Administration as not proven; it said it should be thrown in the bin. Why do the Government still maintain that the Innova lateral flow test is effective, safe and offers value for money to the British taxpayer?
My Lords, the Innova test has gone through the rigorous Porton Down assessment process that the UK uses for coronavirus testing approved by the MHRA, the independent regulator for medicines and medical devices in the UK. I reassure the noble Lord that there is rigorous assurance work in the lab and in the field to ensure that Innova tests consistently perform to the required standard.
My Lords, will the Minister go back to her department and the Department for Education to see whether we can get some consistency in the advice given by directors of public health in relation to sending children home when someone in the year group or the bubble—whatever advice might be given at any time—tests positive? There are some quarter of a million young people out of education today because of the varying advice. It would be good if we could sort this out.
My Lords, I assure the noble Lord that I will take up that point with the Department of Health and Social Care and the Department for Education. We are piloting a programme of daily lateral flow tests as opposed to self-isolation; perhaps that might help avoid such situations in future.
My Lords, does my noble friend the Minister agree that, given the challenges we have of speed, confidence, reach and public compliance, we need a comprehensive and independent assessment of why the rate of tests registered has been low and to make improvements to the system, so that the UK Health Security Agency can be strongly resourced to face down future threats and viruses?
I believe my noble friend may be referring to the low rate of registration for lateral flow tests issued for asymptomatic testing. That is something we are looking at very carefully. Around 40% of people say they have taken tests but not registered the results. NHS Test and Trace is taking steps to improve the registration of test results by streamlining the reporting process and improving communications about the importance of reporting results.
My Lords, test and trace can work only if those who are told that they should isolate do indeed isolate. I believe that companies are now being paid to send people to knock on doors to check whether people are at home as they should be. One report stated that the hit rate was 40% success. Can the Minister tell us the current rate of success on that sort of check?
My Lords, I do not have data for those who might be physically checked in their home, but the ONS conducts surveys of those who have been asked to isolate, which show a higher compliance rate of about 80%. The Government’s focus in ensuring isolation is to provide the right incentives and support for people to isolate, including, for example, the £500 self-isolation payment for those on low incomes. We take enforcement measures, but we seek to persuade and then enforce.
My Lords, I refer the Minister back to her answer to my noble friend Lord Scriven. The American FDA pointed out that the previous analysis pointed to Innova providing false statistics. What new evidence do the Government have that the FDA is wrong?
My Lords, my understanding is that the Innova test has passed the UK’s assessment process and that ongoing assurance work is conducted in labs and in the field to ensure that the tests consistently perform to the required standard. My understanding is also that the latest evidence suggests that Innova lateral flow devices have a specificity of around 99.97%.
My Lords, this morning it was announced that Serco had been awarded a new contract with the Department of Health and Social Care worth up to £322 million to continue providing Covid test-and-trace services. Will the Minister justify this just days after the NAO review found that 600 million tests were unaccounted for, and that the £22 billion scheme was still missing targets and was wracked with problems? Can the Minister explain why more taxpayers’ money is being handed out to what has been found to be an ineffective and inefficient company instead of supporting local public health teams to do this work?
My Lords, more than 80% of the budget for test and trace goes towards the testing part of that programme. That has proved highly effective. The programme is working to increase its partnership with local authorities and local directors of public health. We are also reducing our reliance on private sector contractors by around 17%, but we recognise the work that those partners have done with us in building up the system over the past year and continue to work with them where it is in the best interests of the country.
My Lords, the latest variant is pretty mild—deaths have gone right down—but we are spending billions of pounds on this, while huge waiting lists are building up in the NHS. Is it not about time that this programme was wound down and the money spent on the millions of delayed operations and procedures?
My Lords, we are looking at the evidence in relation to the variant and the effectiveness of the vaccine against it all the time. I assure my noble friend that additional resources have already gone into the NHS to catch up on those waiting lists that have grown because of the pandemic. If we were to get this wrong and there were increased hospital admissions due to Covid, we would not be able to make the progress that he and we all want to see on tackling those waiting lists.
My Lords, the recent National Audit Office evaluation of the track and trace performance revealed that the programme is still not as effective as promised and relies heavily on the use of expensive management consultants. Does the Minister agree that more independent medtech and diagnostic providers should be incorporated into the test and trace programme to meet demand, and can she elaborate on the cost-benefit analysis?
My Lords, the test and trace programme seeks to partner with all organisations that can help its effectiveness: the private sector, public health authorities in local areas and the NHS. SAGE recommends that an effective contact-tracing service should trace 80% of contacts within 48 to 72 hours of someone reporting symptoms and ordering the test. Test and trace has achieved the 72-hour standard since January 2021 and the more stretching 48-hour standard since March this year.
My Lords, I follow the line of questioning of the noble Lord, Lord Moynihan, and the noble Baroness, Lady Wheatcroft. According to the NAO, test and trace
“is responsible for … public compliance”—
but it has no targets for increasing the number of symptomatic people coming forward for testing, the uptake of lateral flow tests or compliance with self-isolation. All three are vital to the success of the scheme. Why are there no targets?
My Lords, test and trace is working to improve performance across all those areas, in particular through the community testing programme. Local directors of public health are playing a leading role in targeting testing to those parts of their local communities where it will have the greatest impact. In addition, all 314 local authorities in England have local tracing partnerships working with test and trace to improve performance in those areas.
My Lords, to return to my noble friend Lady Thornton’s question, economy, efficiency and effectiveness are the National Audit Office’s and the Public Accounts Committee’s measures of confidence in public expenditure. On economy, do the Government regard the £22 billion budget of track and trace as good value for money? On efficiency, is a response rate of 14% on 700 million kits an efficient use of resource? And on effectiveness, do not European calls for the quarantining of UK tourists suggest a total lack of confidence in our tracing systems here in the United Kingdom?
My Lords, the noble Lord is correct that the Government allocated £22 billion to test and trace in the last financial year. As I said, more than 80% of that has been allocated to testing. He is absolutely right that we have sought opportunities to drive down costs where possible and free up resources. We have taken a number of steps to reduce costs, including through commercial negotiations with suppliers, which have released £2.2 billion of savings, and technological advancements. A further £6 billion of savings were achieved by lower demand, changing priorities and deferred activities during the national lockdown from December to March.
My Lords, this pandemic is far from over. We also know that testing has to go hand in hand with tracing to be effective. The Minister mentioned local authorities playing a vital part. Is she satisfied that what we have at the moment is a sustainable system of sufficient support for our directors of public health, to marshal us for future demands in a way that is both effective and responsive to the communities they serve?
My Lords, we have recently increased the resources available to local authorities—for example, in the amount of money they have for discretionary payments to support those who are self-isolating. The noble Baroness is absolutely right about the importance of partnership in this work, and in particular the role of local authorities and directors of public health, to ensure that the uptake of testing is as high as we need it to be. We find that, once people are tested, they do tend to self-isolate.
My Lords, I believe that all the processes in setting up test and trace will have followed the relevant guidance on both the use of private-sector consultants and how the processes for tendering should take place, and I am sure that we will continue to ensure that that is the case.
My Lords, research has shown that many people will not co-operate with test and trace because those on low income or in insecure employment fear the loss of vital income when isolating. What assessment have the Government made of the impact of this in delta hotspots?
My Lords, we are continually working with local authorities to understand, for example, the uptake of the support payments available to those on low incomes who need to self-isolate. One of the challenges we have found is low awareness of the support available. We are working with local authorities, particularly in hotspots, to see what we can do to improve the communication of that available support—not just financial support but social support for those who may then need to isolate.
Skills and Post-16 Education Bill [HL]
Order of Consideration Motion
That it be an instruction to the Committee of the Whole House to which the Skills and Post-16 Education Bill [HL] has been committed that they consider the bill in the following order:
Clauses 1 to 13, Clauses 16 to 25, Clauses 14 and 15, Clauses 26 to 28, Title.
Committee (3rd Day)
Relevant documents: 3rd Report from the Delegated Powers Committee, 4th Report from the Constitution Committee
My Lords, I will call Members to speak in the order listed. During the debate on each group I invite Members, including Members in the Chamber, to email the clerk if they wish to speak after the Minister. I will call Members to speak in order of request. The groupings are binding. A participant who might wish to press an amendment other than the lead amendment in a group to a Division must give notice in debate or by emailing the clerk. Leave should be given to withdraw an amendment. When putting the Question, I will collect voices in the Chamber only. If a Member taking part remotely wants their voice to be accounted for if the Question is put, they must make this clear when speaking on the group. We will now begin.
Clause 16: Policy statement on environmental principles
73: Clause 16, page 10, line 9, at end insert—
“(1A) In exercising their functions and carrying out their duties under this Act, the Secretary of State and all public bodies and authorities must adhere to the environmental principles.”
My Lords, it is my pleasure to open the debate, especially on this group of essential amendments, which really goes to the heart of making the Bill fit for purpose. We must all know that the Bill currently just does not have any bite. We will have all these lovely environmental principles floating around, but no real duties on the Government other than having “due regard”. “Due regard” is a get-out clause. Ministers can easily have “due regard” for something and then make a completely opposing decision, and they know it. That is why they have chosen this wording. It is weaselly, squirming and not worthy of any Government who take the environment seriously.
My Amendment 73 would rectify this by requiring Ministers, public bodies and authorities to all stick to the environmental principles. This would be a clear requirement, so when they do not stick to them those decisions would be judicially reviewable. That is how things should be. It is a simple amendment that would give real clarity, because we all know what the environmental principles are.
My Amendment 75 would flesh out the environmental principles so that they reflect a much broader set of principles, written in simple, understandable language. For example, the precautionary principle and the polluter pays principle would actually be explained and defined. It would also add things such as using the “best available scientific knowledge”, the principles of public participation and the principle of “sustainability” to take into account the health of present generations and the needs of future generations.
Taken together, these amendments would create an accessible blueprint for our country and for the planet. They would set out the clear environmental principles on which our future would be founded, and require—not simply invite—the Government to implement those principles in all areas of policy. This is the type of legislation that a Green Government would implement, these are the principles that we would apply and these are the ways in which we would make ourselves accountable to Parliament, to the courts, and to future generations. I beg to move.
My Lords, I have two amendments in the group. Their aim, rather like those of the noble Baroness, Lady Jones of Moulsecoomb, is to enable the Government to ensure that the environmental principles do the job we need them to do, making sure that environmental considerations are at the heart of decision-making. Indeed, the Explanatory Notes say of the principles:
“The principles work together to legally oblige policy-makers to consider choosing policy options which cause the least environmental harm.”
I am sure we would all welcome that, but, as the noble Baroness rightly said, there are far too many caveats and exceptions in this list. My Amendments 76 and 78 refer to four of them, and I would like to spend a little time drawing them out.
The first is alluded to in the amendment from the noble Baroness, Lady Jones, which is that public bodies are excluded. The policy statement on environmental principles applies only to Ministers. We know that public bodies, of which there are well over 350 in addition to all the local authorities in this country, do the lion’s share of pushing forward government policy throughout the country. It is therefore an omission of some magnitude that only Ministers of the Crown have to pay due regard to the policy statement on environmental principles. It seems to me that we would want all public bodies, such as Homes England and other bodies, to take account of this policy statement that the Government intend to prepare.
The second issue about which I have concern is the excessive use of the word proportionality by the Government as a caveat. If the noble Lord, Lord Vaux, were here I am sure that I would agree with him that there are times and places when the use of “proportionate” is correct. I feel comfortable with Clause 16(2) saying:
“A ‘policy statement on environmental principles’ is a statement explaining how the environmental principles should be interpreted and proportionately applied by Ministers … when making policy.”
However, by the time we get to Clause 18, there is a disproportionate use of the word “disproportionate”, which my amendment seeks to remove. It is again trying to curtail the application of the consideration of the environmental benefit.
Those are two areas, but the two I really wish to concentrate on are the exceptions of the MoD and the Treasury having to take due regard of the policy statement. As I said at Second Reading, the MoD has 2% of the land use in our country. It has a third of our SSSIs, which accounts, in this time of football interest, to more than 110,000 football pitches’ worth of the most protected land in its purview and control.
Last year, when the National Audit Office did a review of the MoD that looked at its “taking account of” environmental issues, it said that environmental protection was “a Cinderella service” in the MoD. As it stands, given all these SSSIs on MoD land at the moment, we have to ask: if the Government are going to meet their 25-year environment plan, which says that they want to have 75% of protected sites in a favourable condition by 2042, how are we going to achieve that if the MoD is not involved? At the moment, 52% of the MoD’s sites are not in a favourable condition.
I do not wish Members of the House to think that I do not think very highly of the MoD or its job of national security, because I do. It has proved that it can do a sterling job of environmental protection. I know this because last year, on MoD land near me in Pirbright, it found a very rare and endangered spider called the great fox-spider. It is instances like that, of which there are a number around the country, that show that national security and conservation and environmental protection can go hand in hand.
However, I do not understand why there is this blanket exemption for the MoD to have due regard to the policy statement. The Minister in the other place, Rebecca Pow, said in Committee:
“it is fundamental to the protection of our country that the exemptions for armed forces, defence and national security are maintained.”
That is not an explanation but merely a statement. She went on:
“The exemptions relate to highly sensitive matters that are vital for the protection of our realm”.—[Official Report, Commons, Environment Bill Committee, 3/11/20; col. 969.]
Again, that does not explain what those highly sensitive matters are.
Since I was not very clear what the Minister was trying to get at last November, I wrote and asked the MoD. I received a very eloquent reply in February from the Minister, Jeremy Quin, from which I quote:
“the Department remains committed to its duty to conserve biodiversity and delivering on the extended duty to ‘enhance’ biodiversity within the Environment Bill. These duties are not altered by the focused defence disapplication in the Bill.”
I question what Mr Quin is saying there. This is not a focused disapplication, and I ask the Minister here: if there are good and focused reasons why the MoD needs a specific disapplication, then we are all reasonable people and I am sure we will be happy to see that expressed in the Bill, but as it stands it is not a focused disapplication.
My second point is that the MoD is subject to the climate change obligations as outlined in the Climate Change Act. Indeed, the Climate Change Committee regularly offers structured advice to the MoD on how it is applying its climate change targets. So if it is good enough for the MoD to “have regard to” the obligations of the Climate Change Act, why is it not good enough that the MoD must take due regard of the policy statement on environmental principles?
Finally, although I am probably going on too long, the other issue I am extremely concerned about is the Treasury’s exclusion from the need to have due regard to the environmental policy statement. That means that consideration of departmental budgets and tax spending, which we know are fundamental to delivering the environmental gains, are outwith the consideration of the statement. In the Government’s response to the Dasgupta review—a day in Committee cannot go by without someone mentioning it—the Government agreed with Dasgupta that nature is a macroeconomic consideration and spelled out in some detail what they were doing to align national expenditure with climate and environmental goals. They quoted the duty on Ministers to have due regard to the policy statement on environmental principles but, perhaps not surprisingly, they did not mention the disapplication for the Treasury. Perhaps the Minister might wish to comment on the discrepancy between the Government’s response to the Dasgupta review and the statement.
I feel strongly that public bodies need to be included within the scope of the policy statement and that the MoD in particular needs to be in scope unless there are very tightly defined exceptions. Excluding the Treasury and all the commitments to departmental spending rides a coach and horses through this measure and frankly, the Government’s aim to deliver the environmental considerations at the heart of policy and decision-making will be wasted.
I am delighted to speak to this small group of amendments. I shall speak particularly to my Amendment 77A but before I do, I would be interested in probing my noble friend on the relationship between Clause 16, on environmental principles, and Clause 45, on environmental law. I have another amendment asking that we write the Aarhus convention into the Bill, so I am interested in how the principles relate to the law in the context of this ground-breaking Bill.
My second point relates to government Amendments 80, 298 and 299. I hope he will look carefully at Amendment 80A in the name of the noble and learned Lord, Lord Hope of Craighead, and Amendment 81 from the noble Lord, Lord Wigley, as there may be nuances relating to Scotland and Wales that the government amendments should consider.
In speaking to Amendment 77A, I am extremely grateful to the Bar Council for briefing me and bringing to my attention that the phrase “due regard to” is inappropriate here and should, as the amendment says, be replaced by “ensure compliance with”. The background to this is that the concept of “due regard” has come before the courts a number of times, so guidance is available on the exercise of due regard by public authorities. This is in the context of public bodies making decisions—concerning equality legislation, for example—rather than making policy, as proposed in the Bill before us.
I shall give a couple of examples. Lord Dyson’s description of “due regard” in R (Baker) v Secretary of State for Communities and Local Government in 2008 has been paraphrased as
“regard that is appropriate in all the particular circumstances in which the public authority concerned is carrying out its function as a public authority.”
The courts have otherwise considered those circumstances where a public body is required to have regard alone to the policy or government guidance. On the one hand, strength may be given to the terms as set out by the High Court in the case of Royal Mail Group Plc v The Postal Services Commission 2007, in which it was held in the context of a decision under the Postal Services Act 2000 to impose a penalty on the licence holder that must have regard to a policy statement, that:
“The obligation to have regard to the policy recognises that there may be circumstances when it does not have to be applied to the letter but … there must be very good reasons indeed for not applying it.”
There is another example, in the context of planning law, where a similar conclusion may be drawn—the case of Simpson v Edinburgh Corporation.
I submit to the Minister that the requirement in Clause 18 of the Environment Bill is currently for a Minister to
“have due regard to the policy statement on environmental principles”,
not simply the environmental principles, when making policy, not when making decisions. From that follow a number of qualifications to that requirement, based on the significance of any environmental benefit or the proportion or disproportion of environmental benefit from the policy itself.
I argue that the use of the term “have due regard” in Clause 18 creates a potential tension between the Government’s clear entitlement to promulgate policy and to express their policy “in unqualified terms” subject to the
“basic tests of reason and good faith”,
as was argued in SSCLG v West Berkshire, and the rule as applied in Padfield v Minister of Agriculture, which is that a statutory discretion must be deployed to promote the policy and objects of the Act and the significance of having a set of environmental principles enshrined in statute in the first place. To that end, a clearer duty to “ensure compliance with” or “ensure accordance with”, as opposed to “have regard to”, would help to avoid confusion, leave the promulgation of policy open to debate in the courts and give greater recognition to the importance of the principles.
I know that, in the context of previous Bills, we have had cause to discuss the context of “have due regard to”. I am arguing for the importance of leaving the courts with a power to impose a financial penalty, as in this case, upon an unsuccessful body—including, for example, statutory undertakings such as sewerage and water undertakers—which has been found to be in breach of environmental law. It is extremely important that, in the context of what we are asking the OEP to do in the remit of the Bill, it be given real teeth when holding public bodies to account and mirror the pre-existing power, previously exercised by the European Commission and which it is now intended that the body of the OEP should fulfil post Brexit.
The requirement that the breach be severe to justify a financial penalty is noted. It is assumed that this is to ensure that a financial penalty be the exception rather than the rule, but this would also be in the context that the OEP’s power to apply for an environmental review is already on the condition that it considers the authority’s failure to comply to be serious. To that end, it might be less open for debate as to whether it is severe or serious if the court’s discretion were wider, and therefore based upon all the circumstances of the case, but to be exercised where those circumstances are exceptional.
In the circumstances before us, “have due regard to” is not appropriate. I would like to replace it in the Bill with the words: “ensure compliance with”. That would give the OEP greater clarity and, should it be subject to judicial review, it would be easier for the courts to clarify in those circumstances. I hope that my noble friend will look sympathetically on probing Amendment 77A.
My Lords, I am delighted as always to follow the noble Baroness, Lady McIntosh, and well understand the points that she has made. I hope that the Minister will listen to them. I support the assertions made by the noble Baroness, Lady Jones, in moving Amendment 73, but my amendments relating to Wales deal with a somewhat different aspect of these policies.
There is a somewhat bizarre linking of issues in the way that they have come together in this debate. We are where we are because of how Clauses 16 to 18 are formulated and the manner in which the Government have tried to ensure that provisions relating to environmental principles do not fall foul of devolved competences in Wales. That is absolutely fair enough but it is far from clear to me, as I suspect it is to the proposers of Amendment 78, what exactly the Government are trying to do. I have tabled Amendments 79 and 81 to try to tease out exactly what their intention is, and I was grateful to the noble Baroness, Lady McIntosh, for highlighting Amendment 81.
As things stand, in making policy that may impact on Wales, the provision is that the Minister must not have due regard to policy statements on environmental principles to the extent that they relate to Wales, whether or not those spheres of environmental policy are devolved. If the Bill has no application whatever to Wales then, as for Scotland and Northern Ireland, Chapter 1 should be excluded from any applicability to Wales. But the Government have insisted on making Chapter 1 applicable in certain circumstances to Wales. On a superficial reading, it would seem that the Government insist that a Westminster Minister will have some powers relating to Wales, although we do not know exactly what they may be. But whatever they are, in applying those policies in Wales, the Minister shall not have regard to environmental principles, though in relation to similar responsibilities in England he will need to have regard to those principles.
The issue of environmental principles is a very important dimension of the Bill and we must be clear about the way in which it applies or does not apply to Wales. It may be that the Minister will look again at the wording of these clauses before Report and, if necessary, bring forward further amendments on the Government’s behalf to clarify the situation. I certainly look forward to hearing his response to this debate.
My Lords, as always, it is a pleasure to follow the noble Lord, Lord Wigley. I am speaking about devolution as well, but devolution in relation to Scotland is the topic that I wish to concentrate on. I will speak to Amendment 80, which is the first of the three government amendments in this group, and to my amendment to that amendment, which is Amendment 80A. I am grateful to the noble Baroness, Lady McIntosh, for what she said about them.
If your Lordships will forgive me, I need to take a little time to explain which problem Amendment 80 seeks to deal with. Both these amendments in fact address the legislative competence of Section 14(2) of the UK Withdrawal from the European Union (Continuity) (Scotland) Act 2021. That subsection states that UK Ministers must have regard to the guiding principles which are set out in Section 13 of that Scottish Act. Those principles are derived from the equivalent principles provided for in the EU legislation, which Scotland has decided to adopt. The UK Ministers are told by subsection (2) that they must have regard to them in making policies extending to Scotland. Amendment 80 seeks to qualify that provision by saying that it
“does not apply to policies so far as relating to reserved matters.”
In other words, it seeks to amend the Scottish Act by saying that it does not apply to environmental policies made by the Secretary of State under the provisions of this Bill. Your Lordships are being asked to accept that amendment and I am afraid that this raises a question of law.
The question is whether the direction by the Scottish Parliament to UK Ministers, which we are being asked to qualify in this way, is compatible with the devolution settlement as set out in the Scotland Act 1998. Its wording seems to assume that, in this context, the distinction between what is devolved to the Scottish Parliament—and thus within its legislative competence—and what is reserved to Westminster with regard to the environment can be determined entirely by the geographical area to which the policies relate. In other words, it assumes that environmental policies directed to what happens in Scotland, whatever their subject matter, must be for the Scottish Parliament and the Scottish Ministers.
The problem, however, is that a provision in an Act of the Scottish Parliament is outside the competence of the Parliament if it relates to reserved matters. Guidance from the Supreme Court tells us that the phrase “relates to” requires one to consider the purpose of the provision under challenge. If its relationship to a reserved matter is merely loose or inconsequential, it will not be outside competence. Speaking for myself, I do not see how a direction to Ministers of the kind contained in Section 14(2), with regard to which environmental policies they must have regard, could be said to be loose or inconsequential. In other words, it seems that the Scottish Parliament’s competence in regard to environmental matters is determined by the subject matter of the reserved matters, not by the geographical area to which they relate.
Environmental policies with regard to energy and transport, perhaps the most important examples in this context, are therefore for Westminster and not for Holyrood. That extends to things such as the transmission, distribution and supply of electricity; restrictions on navigation, fishing and other activities in connection with offshore installations; the provision and regulation of rail services; and the regulation of aviation and air transport. These activities happen within Scotland but the statute says that they are reserved matters. This means that the making of environmental policies that are to be applied to them must be left to Westminster.
However, for the UK Parliament to amend an Act of the Scottish Parliament for the reasons I have just outlined is not a matter to be taken lightly. Normally one would expect the Scottish Parliament to do this for itself. One must assume that the reason why we are being asked to accept this amendment and make the amendment here is that the Scottish Parliament is not willing to do that.
I do not find that entirely surprising, given what happened to a previous EU continuity Bill introduced to the Scottish Parliament in 2018. The UK law officers took the view that much of what it sought to do was outside the legislative competence of the Scottish Parliament. Their view was vigorously contested, so there was a reference to the UK Supreme Court, which resulted in a finding that a number of the Bill’s provisions would not be law for that reason. The Bill was not proceeded with any further, and a new Bill, which became the 2021 Act we are looking at, was introduced instead. That Bill was not challenged by the UK law officers before it became law.
As it happens, two other Bills passed by the Scottish Parliament are the subject of references to the Supreme Court which are being heard in that court as we speak this afternoon. One concerns the incorporation into a Scottish Bill of the UN Convention on the Rights of the Child, as to the competence of which there is strong objection from Westminster and an equally strong resistance to that objection from Holyrood. Common to both is the UK Ministers’ contention that it is not open to the Scottish Parliament to make laws whose effect would be to impose legal obligations on them with regard to reserved matters.
In view of that history, government Amendment 80 is taking us into a very sensitive and much-disputed area. That is why I have taken such a long time saying what this is all about. We do not have the Supreme Court’s view on this case. Nevertheless, I believe, for the reasons I have given, that Section 14(2) of the Scottish Act is in need of correction, so I support this amendment.
But there is an aspect of this matter that the amendment does not deal with: the need for consultation with Scottish Ministers when UK Ministers are making environmental policies with regard to reserved matters in Scotland. Here, geography does matter, because what is done in one subject area with regard to the environment within Scotland is bound to affect another; that is the way the environment works. In its report on this Bill, the Constitution Committee, of which I am a member, has stated:
“Close co-operation between the UK Government and the devolved administrations, including a requirement to consult where policies are being developed relating to reserved matters that affect Scotland, will be important in improving environmental protection across the UK.”
I raised this issue with the Minister when we spoke last week. For obvious reasons, he was not able to commit himself one way or the other on the point. I hope that, having had time to think about it, he will agree that a requirement to consult should be written into this clause, as it is in Clause 26(4) for example, and as has become the regular practice in many other Bills. I know that he will say that consultation does in practice take place all the time, but there are occasions when this ought to be written into a Bill and, in view of the highly sensitive nature of what it being done here, I suggest that this is one of them.
To do that would not undermine the Government’s position in any way. On the other hand, it would recognise that Scotland has a very real interest in the making of policies with regard to reserved matters that affect the environment there. I hope that noble Lords and the Minister will agree with me that this is the right thing to do, so, when the time comes, I will be moving Amendment 80A.
My Lords, it is always a great pleasure to follow the noble and learned Lord, Lord Hope. I rise to support the amendment tabled by the noble Baroness, Lady Jones of Moulsecoomb. I completely agree with her that to “have due regard” to environmental principles is absolutely not enough and we have to insert the words that we must “adhere” to them.
The fact that environmental protection is not yet integrated into all other policy areas makes it impossible for us to reach our net-zero targets. The fact that, for instance, it does not apply to the Treasury leads the cynic in me to say, “Why on earth did they commission the extraordinary review—the Dasgupta review, which the noble Baroness, Lady Parminter, referenced in her excellent speech? Is it just a cynical operation so we have some good window-dressing leading up to the COP?” Otherwise, why leave the Treasury out? It is, at the end of the day, probably the most important government department to ensure that we carry this out.
I want to speak quickly and specifically about the integration principle a bit more. I have spoken here before about the absurdity of putting houses up on the edge of Knepp, the rewilding estate. Just this morning I read the Times:
“More than 60,000 oak, beech and other native trees planted to celebrate the Queen’s Diamond Jubilee are to be chopped down … to build up to 4,000 homes.”
This is on military land at the Prince William of Gloucester barracks in Grantham. It has been commissioned by Homes England—another body referred to by the noble Baroness, Lady Parminter. The Government are apparently eating up their own plans.
The point about these trees is that 88,000 of them were planted between 2012 and 2013 to celebrate the Jubilee, and, as anyone will know, this means that the trees are just coming into their maximum moment to be wonderful carbon sinks. It is a fantastic time for trees. The trees were planted by a group of people in the area, including 15 year-old Call McLelland, who yesterday asked what kind of message this sends out to people. He said:
“I planted a tree at the Grantham Diamond Jubilee Wood with my family when I was seven years old. I can remember looking forward to seeing the trees fully grown and feeling we’d done something worthwhile … I would be devastated”
if this goes ahead.
We cannot have this; we must have consistency. These environmental principles are here for a point. Do we want to lose people like Call—the people we are going to need? I will point out to the Government what happened to them in Amersham recently. People do not like it; they have woken up, and they care about the land and biodiversity. We have targets to meet and integration is where we have to start.
My Lords, it is a great pleasure to follow the noble Baroness, Lady Boycott, and to thank her for putting that important case study on our record. I rise to speak chiefly to Amendment 78 in the name of the noble Baroness, Lady Parminter, to which I have also attached my name, as have the noble Baronesses, Lady Jones of Whitchurch and Lady Young of Old Scone.
Before I get to it, my noble friend Lady Jones has already covered the amendments opening this group and they have been powerfully supported by the noble Baroness, Lady Boycott, but I want to briefly address Amendments 77A, 79 and 80A, because those three amendments—as we have just heard very powerfully, in the case of 77A from the noble Baroness, Lady McIntosh—are about the need for the OEP to have teeth. Her important change does that, and this is something I suspect we will be discussing for a good part of the rest of the day. To the noble Lord, Lord Wigley, I say that of course Wales needs equal protection from the environmental principles that are applied in England. The noble and learned Lord, Lord Hope, clearly identified a really important issue. I would like to offer support to all of those.
I will come specifically to Amendment 78. The noble Baroness, Lady Parminter, did a great job of introducing this. We are talking a great deal about security at the moment and I want to focus on two elements of this amendment, addressing the Armed Forces and defence policy, and also a little bit on the Treasury—as others have already. When we heard the noble Baroness, Lady Parminter, read out the letter from the Minister in the other place, it seemed that we have that great catch-out, security: “Oh, it’s security—we can’t question any of that.” Well, I point noble Lords to the recent integrated review and its foreword, written by the Prime Minister, which says:
“In 2021 and beyond, Her Majesty’s Government will make tackling climate change and biodiversity loss its number one international priority.”
It further points out that
“the UN Security Council recently held its first ever high-level meeting on the impact of climate change on peace and security.”
So we should not be saying, “Here’s security and here’s the environment and security’s going to overrule the environment”. We are talking about the same thing here. The Government say that they grasp this, but I think it is very clear from the wording that they do not.
The noble Baroness, Lady Parminter, referred to the fact that the MoD has so many SSSI sites. That is really not surprising, when the MoD controls nearly 2% of the UK. Looking at what that is, 82% is training areas and firing ranges, which we might think are natural sources of biodiversity and natural spaces where there is a great deal of nature—and similarly with the 4% that is airfields.
It is useful to note that the Armed Forces themselves regard this as really important. Noble Lords might be aware of the sanctuary awards, which are awarded every year within the defence sector, aiming to showcase sustainability efforts across defence. Last year, the silver otter trophy went to the Chicksands historic walled garden project, which brings us back to an earlier debate about heritage being included in “nature”. I also note that the sustainable business award was won by the Portsmouth naval base’s Princess Royal Jetty and Victory Jetty project, which aimed to create sustainable moorings in Portsmouth. It would be well if we saw the same thing happening in Oman, where we built a large new military base without any environmental assessment at all. None the less, we are doing this here in the UK. It is really important that we get the Government to see that security and the environment are not in opposition to each other but joined up.
On that point, I apologise to noble Lords because I will mention something that I have mentioned many times before. When we come to the Treasury not being covered by the Bill, let us look at New Zealand: the New Zealand Treasury puts at its absolute heart a living standards framework informed by the sustainable development goals, putting the environment, economy and security together. If the Government want to be world-leading, we need all aspects of their activities, and particularly the Treasury’s activities, covered by the Bill.
My Lords, I will briefly speak to Amendment 76 tabled by the noble Baronesses, Lady Parminter, Lady Jones of Whitchurch and Lady Young of Old Scone. The whole Bill legislates on the way in which we look after, and improve where possible, the environment, both natural and manmade. I looked at the government website over the weekend and saw that, currently, it lists 20 non-ministerial departments and no fewer than 414 agencies and other public bodies, plus 13 public corporations. These public authorities—I assume that we must add to them the local authorities in a certain sense—control almost every aspect of our lives.
The Bill is, in a certain sense, a framework Bill, from which will come many pieces of secondary legislation and various policy decisions. Clause 18(1) requires a Minister, when making policy, to
“have due regard to the policy statement on environmental principles”.
Given the large number of public authorities that make policy, it seems to me both logical and necessary that they should also have regard to the statement on environmental principles. Having listened to the debate this afternoon, I am not sure that the words “must adhere” are not better than “have due regard”, but that is a matter on which I am sure the Minister will comment.
However, the point of Amendment 76 is to add “public authorities” to the organisms of government that must take account of these principles. Therefore, I look forward to the response of the Minister on why this amendment is not one that the Government could and should accept.
My Lords, I note that—and am honoured to be—listed twice on the speakers’ list for both this and a future group today. I assure the House that I will not speak twice.
I support much but not all of Amendment 73 in the names of the noble Baronesses, Lady Jones of Moulsecoomb and Lady Boycott. It certainly increases rigour by adding a requirement that
“the Secretary of State and all public bodies ... must adhere to the environmental principles”,
rather than just having
“due regard to the policy statement on environmental principles”.
The noble Baroness, Lady Jones of Moulsecoomb, rightly doubts the efficacy of “have due regard”.
In his letter of 10 June, following Second Reading, the Minister made a spirited attempt to defend the rigour of having “due regard”, but it was unconvincing, and “must adhere” would add very necessary strength. However, I accept the Minister’s account of why a statement on environmental principles is necessary to add clarity.
My name is joined with those of the noble Baroness, Lady Parminter, and my noble friend Lady Jones of Whitchurch against Amendment 76. I support the inclusion of “public authorities” in the duty to adhere to environmental principles. We need all government departments and public authorities, nationally and locally, to adhere to the statement on environmental principles in a consistent and comprehensive way.
I also support Amendment 78 in the names of the noble Baronesses, Lady Parminter and Lady Bennett of Manor Castle, and my noble friend Lady Jones of Whitchurch, sweeping away the quite unacceptable exceptions to the requirement to adhere to the environmental principles. I find it staggering to see the Government exempting policies concerning
“the armed forces, defence or national security, ... taxation, spending or the allocation of resources”.
That is a huge chunk of public life. If we are in earnest about environmental sustainability, the environmental principles must be a golden thread running through all government policies.
Taxation, spending and the allocation of resources are fundamental to future environmental sustainability. I will give two examples. The MoD is one of the UK’s top three institutional landowners, either owning or having rights over 430,000 hectares of land, and it should not be exempt from the environmental principles and policy decisions about that land. The topical example so aptly raised by the noble Baroness, Lady Boycott, of the Grantham Diamond Jubilee Wood is very germane. I am delighted that the Woodland Trust, which I am chair of, sponsored that, working with local people, donors and funders. It is a disgrace to see that now being threatened by housing development so soon after its establishment and probably in the year in which the Queen’s next jubilee will be celebrated. We really are in a poor state if we cannot even safeguard high-profile woods of that nature from damaging developments. The MoD and the military have to adhere to the environmental principles if we are not going to have examples like that all over the country.
Taxation is also a significant lever in achieving environmental benefit. Conversely, poorly designed taxation can have a poor environmental impact, often through unintended consequences—so we really need both government departments, in making their spending decisions, and the Treasury, in making allocations, to take account of and adhere to the environmental principles. I very much believe that these exceptions need to be removed, and I support Amendment 78.
The noble Duke, the Duke of Montrose, has withdrawn, so I call the noble Baroness, Lady Neville-Rolfe.
My Lords, I support the Government’s approach on this. Requiring a policy statement on environmental principles is the right approach. Obviously, government must follow the principles, but to make this explicit in the way proposed in the lead amendment would provide scope for mischief-makers and single-issue enthusiasts doggedly to pursue matters in the courts and elsewhere, to the detriment of efficiency and the overall public interest.
The Bill does not and cannot go into the necessary detail, so it seems to me that Amendment 73 would create sweeping requirements and huge uncertainty. For example, how could you prove that environmental protection was integrated into the making of all policies? How could you prove that the polluter pays principle was respected—and in every public body, as now suggested? I am afraid that this is virtue signalling, and it is unenforceable. We have too much repetitive legislation moving in the direction of vague promises and, therefore, storing up decades of trouble for perhaps a favourable headline today. On a Bill so important for the future of our country, I feel that it is time to call a halt.
I have another concern, which is the reference to the precautionary principle in Clause 16. As I think we will hear in due course from my noble friend Lord Trenchard, the Taskforce on Innovation, Growth and Regulatory Reform, set up by the Prime Minister on 2 February, is set to recommend that this principle should not be carried over from EU law. What is my noble friend the Minister’s response to this? Can he kindly explain why the precautionary principle needs to be included in the list of environmental principles?
The basic difficulty of the precautionary principle is obvious. It provides no mechanism for determining how precautionary we need to be. It can always be argued that, however precautionary it is proposed we should be, we should be even more so. Should the chance of death from a new medicine be less than one in a million, or one in a billion? We have no means of deciding. Human progress has also been characterised by innovation, from the wheel and wheat yields to the internet. The precautionary principle could put the latest innovations at risk and, I fear, ensure that they are not invented here in Britain. The list in Clause 16(5) seems more than adequate for environmental protection without this extra principle.
My Lords, it is a great pleasure to follow my noble friend Lady Neville-Rolfe, and I agree with everything that she said.
The noble Baronesses, Lady Jones of Moulsecoomb and Lady Boycott, seek in Amendment 73 that, in preparing his policy statement on environmental principles, the Secretary of State
“must adhere to the environmental principles.”
Clause 16(2) already commits him to explain how the principles should be interpreted and proportionately applied. I therefore rather doubt that this amendment is necessary. The principles already carry great authority, as they are included within the nine environmental principles contained in the withdrawal Act. Four of these were included in the Lisbon treaty and are the same principles—with the addition of the integration principle—that are the subject of the Government’s consultation launched on 10 March and included in the Bill.
It is disappointing that, even though the Prime Minister has welcomed the report of the Taskforce on Innovation, Growth and Regulatory Reform, published on 16 June, this landmark Bill is being introduced on the assumption that our environmental regulatory regime will basically stay the same as it has been under the EU. The task force, under the chairmanship of my right honourable friend Iain Duncan Smith, recognises that our departure from the EU provides a one-off opportunity to set a bold, new regulatory framework and proposes the adoption of a proportionality principle to replace the EU’s precautionary principle which, as the report points out, has led to innovations being
“stifled due to an excessive caution”.
It continues by saying that, freed from the precautionary principle, the UK should
“actively support research into and commercial adoption by UK farmers … of gene edited crops, particularly those which help the transition away from agrochemicals to naturally occurring biological resilience.”
It is disappointing that the precautionary principle has found its way into the Bill and that the Government have proposed it as one of the five principles on which future environmental policy is based. It is of some limited comfort that it has been downgraded from its number one position in the Lisbon treaty to the fifth of five in the draft policy statement on which the Government are consulting. Interestingly, Clause 16 of the Bill places it third out of five.
Last Wednesday evening, I tabled Amendment 75A, to replace the “precautionary principle” with the “proportionality principle” in Clause 16(5)(c). It was accepted on Thursday morning, but only for the fourth Marshalled List, which is of course pointless because it will be by-passed by the time that list is finalised tomorrow.
The noble Baroness, Lady Jones of Moulsecoomb, in her Amendment 75, seeks to increase the number of environmental principles to which, following her Amendment 73, not only the Secretary of State but all public bodies and authorities are compelled to adhere. The counter-innovative precautionary principle makes it into her list at number three out of no fewer than 12, some of which are very broadly drawn. Her amendment would have the reverse effect from the objective of the Government to simplify and clarify our very bureaucratic regulatory rulebook.
The noble Baroness, Lady Parminter, in Amendment 76, would require all public authorities to have regard to the policy statement on environmental policies. I am not sure that this amendment is necessary but, if it were adopted, it would certainly provide another good reason why the environmental principles should be simple and clear.
I am unable to support Amendment 77A, in the name of my noble friend Lady McIntosh of Pickering, which would I think put the Crown in a very difficult position. The precise definition of what is in compliance with the principles as drafted and what is not is very subjective.
I am also unable to accept Amendment 78, in the name of the noble Baroness, Lady Parminter, because the exception for the Armed Forces is very important. There may be other exceptions regarding resource allocation that the Government may reasonably need to rely on.
I look forward to hearing my noble friend the Minister’s response on the amendments regarding the devolved authorities and their powers. I just say, however, that I regret that this United Kingdom Parliament cannot legislate for the whole country on such high-level matters as environmental principles. Politicians in the four home nations will constantly try to adopt slight differences in policy to show their power and for their own political purposes. I have listened to the noble and learned Lord, Lord Hope of Craighead, on this matter, but I very much hope that my noble friend, through the UKIM Act and otherwise, will find a sensible way through to a common position. I certainly look forward to hearing his rationale for Amendments 80, 298 and 299, which I am inclined to support.
My Lords, this is the first opportunity that I have had to speak on the Bill, since I was unable to take part at Second Reading. Perhaps I should begin by assuring noble Lords that I do not intend to make a Second Reading speech on this group of amendments, even though they are wide-ranging. I simply say that, through the course of the Bill, I hope to take an interest in the key issues of air and water quality, biodiversity and waste management. I also wish to raise again, where appropriate, the issue of access to the countryside, concerned as I am about the 38,000 miles or so of permissive access that have been lost with the closure of the CAP-funded stewardship schemes. In speaking today, I should perhaps also point out a non-financial interest that I have, namely that I am president of the Northumberland National Park Foundation.
Regarding the amendments in front of us, I support those in the names of my noble friends Lady Jones of Whitchurch, Lady Hayman of Ullock and Lady Young of Old Scone, who spoke a few moments ago. I also broadly agree with the noble Baronesses, Lady Jones of Moulsecoomb and Lady Parminter, on the importance of the environmental principles and stating what they are, as well as on embedding environmental principles at all stages in the work of government and public bodies and authorities.
I shall comment briefly on the amendments that relate to devolution, although I understand and rather sympathise with the point made by the noble Lord, Lord Wigley, that this seems a rather strange marriage of amendments in this particular group. I support full respect for the devolution settlement, but I hope none the less that there will be proper and full consultation and, indeed, willingness—despite political differences—to learn from each other in the relationships between the devolved authorities.
I read with interest the letter the Minister sent to all of us at the end of last week, addressing some of the points that had been raised in the debate last Wednesday regarding environmental principles and the devolution settlement. In explaining the position, he talked about policies that were tailored to each of the nations, and while I broadly accept what he said, I would like to make the point, which echoes something the noble and learned Lord, Lord Hope, said, that environment issues cross borders. I am particularly sensitive to that, living in Northumberland, where the countryside and agriculture are similar on each side of border. On a recent, wonderful hike in the Cheviot hills, I concluded that nobody had explained to the wandering sheep exactly where the border was and certainly had not explained that they might be subject to different rules on each side of the border.
The hill agriculture and countryside in the north of England—Northumberland, Cumbria, the Yorkshire Dales, for example—are very similar to areas in Wales and Scotland. Therefore, as well as co-operation across borders and the importance of sharing with and learning from each other, I hope the Minister’s policy for England will take fully into account the huge countryside and environmental differences and variety within England. Perhaps he can reassure me on this point.
My Lords, I strongly support the amendments in this group that aim to strengthen the role of environmental principles, including Amendments 73, 75, 76, 77 and 78. When we started out on this journey towards an environment Bill, we were told it would be a non-regression Bill. I thought the idea was not only to maintain but to strengthen environmental protections after leaving the European Union. Yet Clauses 16 to 18, as the noble Baroness, Lady Parminter, explained so clearly, appear to weaken environmental protection in at least three ways: first, by weakening the legal effect of the environmental principles—since instead of acting in accord with the principles, there is only a much weaker duty to “have regard” to them; secondly, by introducing proportionality in the application of the principles, suggesting that they may be compromised for other priorities; and thirdly, as a number of noble Lords have pointed out, by exempting many public authorities, including two government departments that were specifically referred to.
I shall focus on Amendment 78 in the name of the noble Baroness, Lady Parminter, and others, and on Clause 16(2). Can the Minister explain why he considers the introduction of proportionality necessary, when the precautionary principle, according to the High Court, already includes proportionality? I strongly disagree with the noble Baroness, Lady Neville-Rolfe, and the noble Viscount, Lord Trenchard, and I hope this example will help to explain why there is no need to replace a precautionary principle with a proportionality principle.
I refer to the High Court judgment of 28 May 2021 in the case of Natural England applying the precautionary principle in relation to nitrogen loads in the Solent. In his decision in favour of Natural England, Mr Justice Jay said that Mr Elvin, who was representing Natural England
“also submitted that the precautionary principle embodies both proportionality and a degree of inherent flexibility to reflect the nature of the harmful outcome. … If all that Mr Elvin was submitting was that in some circumstances it would be close to impossible to obtain precise scientific data and consequently it may be appropriate, as well as proportionate, to draw from generic data and experience in analogous situations, I would agree with him. … But that is the whole point of the precautionary principle: the uncertainty is addressed by applying precautionary rates to variables, and in that manner reasonable scientific certainty as to the absence of a predicated adverse outcome will be achieved, the notional burden of proof being on the person advancing the proposal.”
There is no need for a principle of proportionality according to the High Court; the precautionary principle includes proportionality. I look forward to the Minister’s response to this example.
Finally, I refer to the extended list of environmental principles in Amendment 75 in the name of the noble Baroness, Lady Jones of Moulsecoomb. One principle in the extended list is the
“use of the best available scientific knowledge.”
I do not understand why that is not in the Government’s list, because it is surely uncontroversial that the best scientific evidence should be used to make determinations about environmental matters. Good science is particularly important since many key scientific matters—the safety of certain pesticides, for example—are hotly contested. It is important that we have a good understanding of where the certainties and uncertainties in the science lie. I look forward to the Minister’s response.
My Lords, I support some of the amendments in this group in the name of the noble Baroness, Lady Jones of Moulsecoomb, and others. I support the views of the noble Lord, Lord Krebs, who just spoke about the importance of the list of environmental principles contained in Amendment 75.
We are in danger of having a debate over a more detailed list, that some noble Lords have said may be unenforceable, and a higher-level list which, sadly, many people would say was a bit like motherhood and apple pie and probably unenforceable for that reason. I think the list in Amendment 75 is extremely good. But, as other noble Lords have said, environmental interests can conflict with commercial interests, even if they are hidden by something that is called “environment.” A debate can sometimes use pretty abstruse environmental information to put forward an argument that is not necessarily compliant with everything that should be on this list.
I was involved in the Aarhus convention some years ago, and that seems to sum this up. It is a great shame we do not have it and it has to go back in here if this amendment is accepted; it is about public participation and how to extract information from Governments and public bodies wishing to hide it until it is too late to cause any problems. It is very important to put this in more detail in the environmental principles.
I am also concerned about exemptions. The noble Baroness, Lady Boycott, and my noble friend Lady Young of Old Scone mentioned the example about trees, which was quite frightening. Some friends from Plymouth who live next to one of the muddy creeks said that the MoD turned up with a jack-up barge a few weeks ago. They asked, “What is this jack-up barge doing? This is mud, which is quite environmentally friendly—there are lots of birds, fish and everything else,”. The MoD said, “We are going to put a large pylon in to help the submarines go into one of the docks in Plymouth.” My friends asked, “Shouldn’t you have told anybody? Shouldn’t you have told the local council? Shouldn’t you have consulted the residents along this little muddy creek?”
They ended up having three public meetings about this, with the top brass of the Navy turning up with an ever-increasing number of stripes on their arms to say how important this particular pylon was. They said in reply, “Anybody who knows anything about pilotage or moving big ships knows that you do not need this anyway, so why are you doing it? You’re supposed to be the experts”. We can go into the navigation issues, but that does not really matter. The point is that this is another example of the MoD trampling over people. If my friends had not phoned up those at the council and asked whether they knew about this—oh no they did not—it would have gone ahead, and they would have had a great big pylon in the middle of a rather nice creek which was quite happy as it was.
Unfortunately, the MoD has a reputation for not always consulting and not always thinking about whether something is really necessary. My view on so much of this is that we say it is necessary for A, B or C—and the noble Baroness, Lady Neville-Rolfe, said that we have to move forwards, or something like that—but we must occasionally think “Can we do without it?” We do not have to go back to the horse and cart, but life and the environment might be much better if we did do without it.
As the noble Baroness, Lady Young of Old Scone, pointed out in her earlier speech, she has been listed twice. I will not call her a second time, but will instead call the noble Baroness, Lady Bakewell of Hardington Mandeville.
My Lords, I declare my interest as a vice-president of the LGA. This is a very extensive group of amendments which, quite rightly, places the responsibility for the environmental principles on all public bodies and authorities. Amendment 75 from the noble Baroness, Lady Jones of Moulsecoomb, removes these environmental principles and substitutes a far more extensive set to ensure that biodiversity, climate change and human health are all part of the consideration of the Bill.
My noble friend Lady Parminter seeks in Amendment 78, again quite rightly, to put the environmental principles at the heart of government and has expanded on the wish to include all government departments within the scope of the Bill. It is a nonsense, as we have just heard the noble Lord, Lord Berkeley, eloquently say, to allow the MoD and the Treasury to be excused from the need to take responsibility for what happens to the planet. We cannot have highly influential policymakers ignoring the efforts that the rest of the country is making to improve our environment for future generations, especially where this includes SSSIs, as my noble friend Lady Parminter said.
The noble Baroness, Lady Jones of Moulsecoomb, and others, including the noble Baroness, Lady McIntosh of Pickering, raised the knotty issue of ensuring the Minister “must ensure compliance with” and not only “have due regard to”. The Minister can have due regard to the comments your Lordships are making this afternoon, but he does not have to comply with them, no matter how passionately our arguments are put. He can have due regard, take note of what we say and then completely ignore it. I am not suggesting that the Minister will do this, but it shows that, unless compliance is in the Bill, there will be little confidence that it will make the difference we are all looking for.
The noble Baroness, Lady Boycott, gave us a very powerful example of where environmental principles should be upheld by all government departments. The noble Baroness, Lady Bennett of Manor Castle, urged the Government to adopt the New Zealand Treasury model, where the environment is at the heart of its policies. I regret that we cannot agree with the noble Baroness, Lady Neville-Rolfe, but I note that she is chair of the Select Committee on planning, and so can understand where she is coming from. The noble Lord, Lord Krebs, also gave a very powerful example of the precautionary principle where it affected Natural England.
The noble and learned Lord, Lord Hope of Craighead, and the noble Lord, Lord Wigley, make the case for the involvement of, and consultation with, Scottish Ministers and the Welsh Senedd respectively with regard to environmental principles and reserved matters. The devolved Administrations cannot be ignored, although the Bill makes it clear that it relates only to England. Unless we have a holistic approach across the whole of GB, we will see piecemeal policies and uneven progress on vital matters. I look forward to the Minister’s response and hope we will not have to bring these issues back on Report, because I can tell from the level of enthusiasm and passion we have heard in this debate that, unless we get a satisfactory response, we will go around them again.
My Lords, it has been a very interesting debate, with some excellent speeches. I hope the Minister is clear about the concerns of the majority of those who have spoken. I will speak particularly to Amendments 76 and 77 in the name of my noble friend Lady Jones of Whitchurch, and to Amendment 78 in the names of the noble Baronesses, Lady Parminter and Lady Bennett of Manor Castle, and my noble friend Lady Jones of Whitchurch. We also support the other amendments in this group that aim to improve the application of environmental principles and address the proportionality limitations and exemptions currently in the Bill.
The Bill enshrines important principles in law, as we have heard, but the clauses on these principles are largely unchanged from previous drafts, despite very clear evidence from pre-legislative scrutiny of the need for them to be strengthened. As the noble Baroness, Lady Jones of Moulsecoomb, said, these are the principles a green Government would wish to implement. As the noble Baroness, Lady Boycott, said, we must have consistency. Other noble Lords have spoken about the importance of the principles and the inadequacy of just having to “have due regard”. The noble Lord, Lord Krebs, rightly reminded your Lordships’ House that we were expecting a Bill of non-regression.
Amendment 76 seeks to drive consideration of the environmental impacts of policy-making throughout all governmental bodies. Amendment 77 ensures that a Minister must, when making policy, directly apply the environmental principles in effect at that time. Environmental principles have been binding on all public authorities, including in individual administrative decisions, but this legal obligation on all public authorities will be undermined by the Bill. The impact of the principles has extended deeply and routinely into administrative decision-making, often having a binding effect on the public bodies directly delivering measures, including, for example, in respect of GMOs, pesticides, waste regulation and water regulation. As my noble friend Lady Young of Old Scone clearly laid out, it is vital that the duty applies to all public authorities. The principles must be taken account of in the formation of policy, implementation, public authority decision-making and many other stages of environmental management.
We have heard concerns about the impact on our devolved Administrations from the noble Lord, Lord Wigley, for example, and the noble and learned Lord, Lord Hope of Craighead, talked about the Scottish legislation. I draw the Minister’s attention to Section 14 of the Scottish continuity Act, which requires Scottish Ministers to have direct and due regard to the guiding principles on the environment in developing policies, including proposals for legislation. It also places additional requirements on public authorities to have direct and due regard to the principles when carrying out strategic environmental assessments of plans, policies and programmes. Can the Minister explain why he believes the Government’s approach here will have a better outcome for the environment?
Clause 16 of this Bill requires the Secretary of State to prepare a policy statement on environmental principles, but only Ministers, and not public authorities, must have due regard to this statement, and this requirement does not apply to decision-making. Furthermore, Clause 18 brings in a number of wide-ranging exemptions, as we have heard, seeming to absolve the Treasury, the MoD and those spending resources in government from having to consider the principles at all. The noble Baroness, Lady Parminter, clearly explained why this is very problematic. It is important to establish a principle that no area of government should be exempted from its responsibilities to the environment.
Amendment 78 removes the proportionality limitations and exemptions for the Armed Forces for defence policy, tax, spending and resources. The noble Baroness, Lady Parminter, introduced her amendment on this extremely clearly, and the noble Baroness, Lady Bennett of Manor Castle, explained further why it is particularly important to include the MoD.
However, in considering the exemptions for the Armed Forces and defence policy, we do not want to impede the work of our Armed Forces or compromise our safety and security in any way. Were these exemptions to be confined or constricted to decisions relating to urgent military or national security matters, it could perhaps be considered reasonable. However, the clause is not drafted in this way; rather, it is a blanket exclusion for the Ministry of Defence and the Armed Forces from complying with environmental principles at all, as set out in the Bill.
We are in a climate emergency. There is no time to wait around for the good will of departments to take action and certainly not those with those such significant spending, carbon emissions and land ownership. In response to media coverage of concerns about the wide exclusions in the Bill, Defra offered some clarification on spending, including:
“It is not an exemption for any policy that requires spending.”
However, these wide exemptions remain in the legislation, meaning that policymakers are less likely to apply the policy statement in relation to the policy on defence and financial matters without explicit instruction to do otherwise.
The truth is that Clause 18 is a blank cheque for Ministers to invoke if they decide under certain circumstances not to be bound by environmental protection. I look forward to the Minister’s consideration and response.
My Lords, I thank all noble Lords for their contributions on this important subject.
I start with Amendment 75 tabled by the noble Baroness, Lady Jones of Moulsecoomb. The Government’s view is that the current list of five environmental principles will work to protect the environment. The principles outlined in the Bill have significant case law and history so their meaning and application is clearly understood and defined. These five principles are also consistent with those agreed through the UK-EU Trade and Co-operation Agreement. If we were to increase the number of principles to those outlined in the noble Baroness’s amendment, this would create confusion, leading to ineffective application of the principles for policymakers and an uncertain impact on future policy-making
Amendment 78 tabled by the noble Baroness, Lady Parminter, deals with proportionality and exemptions for tax and spending, the Armed Forces and defence policy. Environmental principles will be embedded at the heart of policy development across government, but there will be times when action is not proportionate. As such, it is right that Ministers are able to reject a policy change where this is considered legally disproportionate—for example, where a policy change would be very costly and the environmental benefit insignificant. I do not believe that this is an unreasonable position. If the exemption to act proportionately were removed, Ministers would be required to prioritise environmental concerns even where they incurred significant and disproportionate cost to society and where the gains were nevertheless insignificant.
Similarly, exempting some limited areas from the duty to “have due regard” provides flexibility with respect to the nation’s finances, defence and national security. In relation to defence and national security, removing the exemption in the Bill could restrict our response to urgent threats. Policy decisions concerning defence are often made rapidly, or even in real time, where there is an urgent need to achieve operational imperatives. The Government wish to retain that agility.
Let me add now rather than later, in relation to the point made by the noble Baroness about land—in particular, SSSIs, which are currently owned by the MoD—that the exemptions do not apply in any respect to SSSIs. There should be no change in status for land that is protected in law as a consequence of its designation as an SSSI or anything else. As it happens, the MoD is meeting its national target in relation to SSSIs.
The noble Baroness, Lady Boycott, gave an example of trees planted on MoD land for a special purpose but which now face a threat. Given that this is a live planning matter there is a limit to what I can say, but she will not be surprised to hear that neither I nor—I am quite certain—my colleagues would want to see such trees grubbed up. The Bill adds protections for trees, through strengthening the Forestry Act as well as through other measures, which we have discussed, and will continue to discuss in Committee. In addition, Defra and MHCLG are currently working closely together to work out how we can boost protections for trees in various ways, including through the new designation of “long-established woodlands”.
Taxation, spending and allocation of resources are excluded from the remit of the principles of the office for environmental protection to provide for maximum flexibility in respect of the nation’s finances. For example, at fiscal events and spending reviews, decisions must be taken with consideration to a wide range of policy priorities, such as sustainable economic growth, macroeconomic and financial stability and sustainable levels of debt. These macroeconomic issues are too remote from the environmental principles for them to be directly applicable. However, I emphasise that this is not an exemption for any policy that requires spending. For example, if in future the Department for Transport were given funding from the Treasury to achieve a particular transport aim, the programme in question would still have to have due regard to the environmental principles policy statement in policy and decision-making.
As regards Amendment 76 tabled by the noble Baroness, Lady Parminter, given that it is central government that sets the overall strategy and approach for any key decisions taken by other public bodies, it is not necessary to extend the environmental principles duty to cover these public authorities. The application of the environmental principles policy statement by Ministers will mean that the environmental protection promoted by the principles will filter down into local policy and strategic decisions. This means, for example, that in the case of a planning application for a village pub, the decision will be made in compliance with the National Planning Policy Framework, which will in future be set by Ministers having had due regard to the policy statement. It would therefore be unreasonable, and create unnecessary duplication, for the local authority to also have due regard to the principles policy statement—as well as in considering a planning application in the case of that village pub. We need to try to avoid imposing excessive and unnecessary burdens on public authorities. That is why we have taken the approach that we have.
I turn to Amendment 77 in the name of the noble Baroness, Lady Jones of Whitchurch, and Amendment 73 tabled by the noble Baroness, Lady Jones of Moulsecoomb. Requirements to apply the principles directly via a duty through the policy statement would risk inconsistency in their interpretation and application by Ministers. It could result in the principles being applied either too stringently or ineffectively. Placing a legal duty on the environmental principles policy statement offers greater clarity for policymakers because the policy statement will set out specific details on the application and interpretation of the principles. By comparison, a similar requirement in the EU framework is opaque and effectively impossible for anyone to legally challenge. The extent of the EU requirement to consider the principles—the manner in which it has actually impacted EU environmental policy—is an unknown. Our policy statement, with more detail and more context, will mean better and clearer application of the environmental principles to policy-making.
I hope that it will also reassure the noble Baroness, Lady Jones of Whitchurch, if I clarify that Clause 46 already provides through a definition that policy includes proposals for legislation. The noble Baroness, Lady Jones of Moulsecoomb, I believe—I apologise if it was not her—mentioned the Aarhus convention. I know that we will be debating that issue in some detail in a later group of amendments, so I will leave my comments until then.
Finally, I turn to Amendment 77A in the name of my noble friend Lady McIntosh of Pickering. By placing a statutory duty on Ministers of the Crown to “have due regard” to the policy statement, the Government are ensuring that the application and interpretation of the five environmental principles is consistent across government policy-making. In answer to the noble Baroness, Lady Parminter, the Clause 18 duty is amenable to judicial review. It provides flexibility for the policy statement to be considered with substance, rigour and an open mind. The due regard duty is used in other high-profile areas, such as in the case of the public sector equality duty, and has been shown to have significant effect to catalyse a change in behaviour. There is also extensive case law and, notably, the Brown principles setting out what this duty means in practice. The practical effect of these principles is that a duty to ensure compliance with the policy statement as proposed in the amendment would not add any additional benefit or clarity. However, such a duty would add unnecessary burdens and inflexibility for policymakers compared to the due regard duty as the clause stands.
To address the comment made by the noble Lord, Lord Krebs, echoed by the noble Baroness, Lady Hayman, I say that our approach is not designed to replicate the EU framework; it is designed to provide a more effective process. Our approach goes further than the EU by ensuring that Ministers across government are legally obliged to consider the principles in all policy development where it impacts on the environment. In the EU, the principles apply only in the development of policy that is specifically environmental. In addition, the environmental principles listed in the Treaty on the Functioning of the European Union do not apply directly to, and therefore are not legally binding on, member states. Rather, they apply when the EU makes environmental policy. Under our membership of the EU, there was no legal obligation for the UK or any other member state to use these principles when making environmental policy unless they featured in domestic law. That clearly changes with, I hope, the introduction of the Bill. With respect to the noble Lord, Lord Krebs, I think he could not be more wrong on the point of regression in relation to our previous status under the European Union.
I would like to speak to government Amendments 80, 298 and 299 tabled under my name. As recognised by the noble Lord, Lord Wigley, it is important that the principles apply across the UK. The Scottish continuity Act creates a version of the environmental principles duty for Scotland. However, our interpretation is that the duty in the Scottish continuity Act applies to devolved areas only. This means that the duty does not apply to Ministers of the Crown in relation to reserved matters in Scotland. These amendments expand the scope of the duty in Clause 18 so that UK Government Ministers will need to have due regard to the environmental principles policy statement when making reserved policy that relates to Scotland. The intention is simply to have a clear and consistent process in place for embedding environmental protection considerations in policy-making with regard to reserved matters, and this is in keeping with the devolution settlement. We will continue to work with the Scottish Government to ensure that our environmental approaches work together.
I turn to Amendments 79 and 81 from the noble Lord, Lord Wigley. As I have said, our approach to environmental principles respects the devolution settlements, and these differ slightly from country to country. The Welsh Government signalled their intention to come forward with further legislative proposals for the environmental principles in Wales, and it would not be appropriate for the UK Government to legislate in advance of this process. I also note that, at the request of the Department of Agriculture, Environment and Rural Affairs in Northern Ireland, the Bill makes provision for environmental principles to be introduced in Northern Ireland, subject to the approval of DAERA and the Executive.
Finally, I take this opportunity to thank the noble and learned Lord, Lord Hope of Craighead, for Amendment 80A. His support and interest in this matter is greatly personally appreciated, and I reassure him that the UK Government will certainly engage with the Scottish Government when developing reserved policies that have an impact on Scotland. This engagement corresponds to the memorandum of understanding on devolution—namely, that all four Administrations are committed to the principle of good communication with each other, especially where one Administration’s work may have some bearing on the responsibilities of another. Over half the measures in the Bill are joint with the devolved Administrations, as a result of extensive consultation and engagement over a number of years and months. I hope this has reassured noble Lords, and I beg them not to press their amendments.
My Lords, I have received two requests to speak after the Minister, from the noble Earl, Lord Caithness, and the noble Baroness, Lady McIntosh of Pickering. I will call them in that order.
My Lords, I listened with care to what the noble Lord, Lord Krebs, said about the precautionary principle, because this is hugely important to conservation and land management. I note that my noble friend the Minister did not respond specifically to the question he posed. While he is considering an answer to that, I am going to ask him a couple of questions too. How will the precautionary principle be interpreted by government? Will it be on the basis of a hazard approach or of a risk approach? The two are very different. It has to be a balanced approach; I think the courts have indicated that this is the right way forward. He will know that the precautionary principle, depending on how you interpret it, can stop some vital research. His department, Defra, has been guilty of stopping research because it used the precautionary principle. If we are trying to help biodiversity and conservation, we must be allowed to carry out sensible, controlled research to try to get to the right answer. If he is going to use—it is probably the wrong word—political bias against a particular aspect and say, “You cannot do research into that area”, then we are not being of any benefit to conservation or land management.
My Lords, on the first question, I felt that I answered the noble Lord, Lord Krebs, in some detail—indeed, in more detail than any other point raised—and I do not want to have to repeat what I said on non-regression. On my noble friend’s question about the precautionary principle, the principles have significant case law and history, as I said. Their meaning and application are clearly understood and defined, and none of them represents a leap into the unknown. The Government’s approach to the precautionary principle includes a proportionate and risk-focused application, respecting the balance with social, economic and other considerations. This was provided for in the draft policy statement which noble Lords will have seen. In response to my noble friend’s question, I say that our view is that the principle should not hinder innovation due to novelty but should instead support innovative policy approaches by providing policy-makers with the tools that they need in order to balance risk.
My Lords, given all the respect and affection in which I hold him, I am slightly dismayed that my noble friend actually played back at me that “having regard to” worked perfectly well in equalities policy. I actually quoted case law at him. If I may, I would like to submit the case law I have to him so that his legal team can look at it. But I just make a plea: we are about to come on to the office for environmental protection. We are hoping to replicate at national level, throughout the whole of the United Kingdom, very stringent penalties for infringement of environmental policy or principles, such as a chemical spillage or other contamination of water. That is why—I am sure he would agree—we want the fewest referrals possible to any court under a judicial review, we want to be absolutely clear and we need to ensure compliance and have the possibility of financial penalties being imposed, rather than just a very mealy-mouthed “have regard to”.
My Lords, I thank all noble Lords who have taken part in this debate, even the ones who have disagreed broadly because, although it is not good for my temper, it is good to see just how far the Government will go in trying to block all these common-sense amendments. I thank noble Lords for their valuable contributions to that.
The noble Baroness, Lady Parminter, was excellent on her amendment, and I hope that we can do something more on Report. The noble Baroness, Lady Bakewell, sort of implied a threat, which is completely contrary to her gentle nature—but, obviously, a threat is what the Government will understand. The noble Baroness, Lady Parminter, also talked about too many caveats and too many exceptions, and of course that is absolutely right. We have to make sure that the MoD does not do things such as cutting up hundreds of trees that were planted in honour of the Queen or putting pylons in muddy rivers where they are not needed. This is exactly the sort of organisation that needs some environmental principles. I thank the noble Baroness, Lady McIntosh, for her support; it is always good to have her support across the Chamber. The noble Lord, Lord Wigley, and the noble and learned Lord, Lord Hope of Craighead, talked about the other Governments, and I support what they said completely. I thank the noble Baroness, Lady Boycott, for her support and for signing the amendment. It is incredibly important that we work across the Chamber and cross-party, so I look forward to working with her on this in the future.
It is always good to hear from my noble friend Lady Bennett, who is much more clinical and knowledgeable than I am. She wields a scimitar much better than I do; I am far too friendly for your Lordships, really. She made a point about security and the environment being linked, and we see this in almost every area. There are places in the world that have been growing our pineapples and bananas that will not be able to in the future, when they have droughts and all sorts of intemperate weather. This means they will be under threat, so we may have to move around. We cannot divorce these things—in fact, you cannot divorce any topic—from the environment.
I did not quite pick up what the noble Duke, the Duke of Wellington, was saying, but I think he was supporting us and I thank him. If I got that wrong, he can see me afterwards. Of course, I am always grateful for the support of the noble Baroness, Lady Young of Old Scone.
I say to the noble Baroness, Lady Neville-Rolfe, yes, of course there will be things we cannot do because of the precautionary principle. This goes for the noble Earl, Lord Caithness, as well: if it is bad for the environment, it is probably not a good idea to do it. We can use lots of other areas for innovation, and Greens love innovation. We love using technology where it fits—if it fits all the criteria we are talking about, for the well-being of humanity and of the planet.
I did not agree with anything said by the noble Viscount, Lord Trenchard, but that is the norm.
I thank the noble Baroness, Lady Quin; that was a calm exposition agreeing with Amendments 73 and 76, which is very valuable. Of course, it is fantastic to have the support of the noble Lord, Lord Krebs, on anything. He pointed out that this was meant to be a non-regression Bill but, quite honestly, when the Minister said that it is, I choked. I started coughing because it is so patently untrue.
The noble Baroness, Lady Hayman, sounds so reasonable. I wish I had some of her reasonableness when, at the same time, she is very tough. That is fantastic.
In dismissing this list, the Minister talked about how the current principles are based on case law and so on. The Government have already lost so many cases because they do not understand environmental principles. In fact, the stronger the basket, the structure, we can have around every single government department, the better it will be for all of us. I am sure we will fight over that many times.
Are the exclusions of the Ministry of Defence and the Treasury necessary for agility? I do not think so. That sounds like the sort of argument that could easily be dismissed, so I would be interested to see where the Minister got it from. It does not risk confusion if we have more; in fact, it clarifies things to have better and clearer principles. I argue that the amendments in this group are vital and that the Government will have a tough job to convince us otherwise. I beg leave to withdraw the amendment.
Amendment 73 withdrawn.
Amendments 74 to 75A not moved.
Clause 16 agreed.
Clause 17 agreed.
Clause 18: Policy statement on environmental principles: effect
Amendments 76 to 79 not moved.
80: Clause 18, page 11, line 26, at end insert—
“(4) Subsection (1) applies to policy relating to Scotland only so far as relating to reserved matters.(5) Section 14(2) of the UK Withdrawal from the European Union (Continuity) (Scotland) Act 2021 (asp 4) (UK Ministers must have regard to guiding principles on the environment in making policies extending to Scotland) does not apply to policies so far as relating to reserved matters.(6) In this section “reserved matters” has the same meaning as in the Scotland Act 1998.”Member’s explanatory statement
This amendment and Lord Goldsmith’s amendment to Clause 138, page 123, line 22, apply the provisions about the policy statement on environmental principles to reserved matters in Scotland, and provide that section 14(2) of the UK Withdrawal from the European Union (Continuity) (Scotland) Act 2021 does not apply to such matters.
I shall take that intervention as inadvertent—although the noble and learned Lord, Lord Hope, has reappeared.
I am not quite sure whether I am audible or not. I just want to thank the Minister for his kind remarks about my support for Amendment 80. As far as my Amendment 80A is concerned, I hope he will reflect carefully on what I said and perhaps come back with something on Report but, for the time being, that amendment is not moved.
Amendment 80A (to Amendment 80) not moved.
Amendment 80 agreed.
Amendment 81 not moved.
Clause 18, as amended, agreed.
My Lords, we come now to the group consisting of Amendment 81A. Anyone wishing to press this to a Division must make that clear in debate.
Clause 19: Statements about Bills containing new environmental law
81A: Clause 19, page 11, line 31, at end insert—
“(1A) The purpose of this section is to ensure that the effects of the provision on the level of environmental protection under existing environmental law are considered before the Bill is introduced.”
My Lords, I hope I can be heard. Amendment 81A is a probing amendment, for reasons that I hope to explain. Clause 19 provides for the making of statements about Bills containing new environment law before the Bill’s Second Reading. According to paragraph 22 of the Explanatory Notes, these are to be statements setting out “the effect” of the new primary environmental law on existing levels of environmental protection provided for by environmental law, but the wording of the clause does not quite say that. All it requires is a statement by the Minister that the Bill contains a provision which, if enacted, would be environmental law and would not have the effect of reducing the level of protection provided for under existing environmental law, or that the Minister is unable to make that statement. There the matter lies. How great the reduction would be and in what respects, if he or she is unable to make the statement, is another matter, which the clause does not mention or require to be considered.
A requirement of the limited kind that this clause describes seems to be breaking new ground, although something similar is to be found in Section 19 of the Human Rights Act 1998, which requires Ministers to make a statement of compatibility. That provision was seen, when the Human Rights Bill was introduced, to serve three purposes. First, it would have the salutary effect of focusing the Government’s mind on the question of whether the proposed legislation would be compatible with the European Convention on Human Rights. Secondly, it would provide information to Members of Parliament which might be relevant to their debates and discussions. Thirdly, it might affect the judicial interpretation of any legislation that was passed.
The third purpose was soon negatived when the Law Lords sitting in this House made it clear that it was for the courts and not a Minister to say whether the legislation would be compatible with the convention. The second does not seem to have been borne out in practice, as I cannot recall any case where the significance or otherwise of the Minister’s statement has been debated in this House. That may be because it has no legal significance. I hope that the first salutary purpose is still there, and that these statements, which appear without fail in every Bill, are not a mere formality because the matter has been considered.
So the question is: what is the purpose of the requirement in Clause 19? It cannot bind the courts, as it is for them and not the Minister to say whether the provision would be environmental law, should that issue ever arise in legal proceedings. I can see some prospect of its having the salutary effect of requiring the Government to address the question, focused on in Clause 19(3), of whether the level of environmental protection provided by existing environmental law would be reduced. That would be a good thing and very welcome, but do we need a provision in this Bill for that to happen? What would happen if, as it turns out, the statement the Minister made was wrong, if the Bill is amended in a way that might affect what the Minister said or if the Minister is unable to make the statement? The clause does not address these issues at all.
If, on the other hand, the making of a statement of the kind referred to in Clause 19(4) is to provide an opportunity for debate, what purpose would that debate have if the Government nevertheless wish the House to proceed with the Bill and will enforce their wish? The clause does not provide for any kind of sanction or remedy. It can be said that there is some value in drawing the matter to the attention of the House, but does it really add anything to what would be likely to happen anyway when the Bill came under scrutiny?
There is one other point worth mentioning. The phrase “existing environmental law” is defined in Clause 19(8), in relation to a statement under the clause, as meaning
“environmental law existing at the time that the Bill … is introduced into the House”.
However, that definition does not say what it is or where it is to be found. For that purpose, one has to go to Clause 45. The very broad definition that this clause provides is
“any legislative provision … that … is mainly concerned with environmental protection”—
which, for this purpose, includes devolved legislative provisions as well.
This is quite a package. It is unlike Section 19 of the Human Rights Act, where the convention itself and its precisely grouped surrounding case law is the point of reference. Given the extensive legislative background against which the Bill is likely to have been drafted, it may be quite difficult for a Minister to make such a statement with any conviction that everything has been turned over correctly and would stand up to scrutiny. That is why it might be wiser, to avoid any misunderstanding and any potential mishaps due to the difficulty of searching the ever-expanding reach of legislation in this field, to make it clear that the purpose of the clause is limited to what is indicated in my amendment.
In any event, it would be helpful if the Minister were to make it clear, for the assistance of all those to whose functions it is directed, what exactly the purpose is of this clause. I beg to move.
My Lords, I am delighted to support Amendment 81A, which I have co-signed. I support entirely the comments made by the noble and learned Lord, Lord Hope of Craighead, in moving it.
I want to raise a very narrow point with my noble friend the Minister. It relates to the second part of Clause 19(8). Subsection (8) states:
“‘Existing environmental law’, in relation to a statement under this section, means environmental law existing at the time that the Bill to which the statement relates is introduced into the House in question, whether or not the environmental law is in force.”
This posed quite a question at the time of the withdrawal Act and the subsequent statutory instruments on retained EU law, particularly as the water framework directive was being considered and revised. Unfortunately, we had an empty-chair policy at the time, so were not at the council meetings when this was discussed, but it begs the question of which water framework directive, for example, is now enshrined in UK law. Is it the one that we previously agreed to or is it the one that was subsequently revised at the time of our departure from the European Union?
The second and last question that I have for my noble friend the Minister relates to a jolly good read which I commend to him: the 22nd and final report of the European Union Committee, Beyond Brexit: Food, Environment, Energy and Health. It was adopted by the European Union Sub-Committee, on which I was privileged to serve. In paragraph 148, the report sets out that the trade and co-operation agreement
“negotiated by the Government will affect the policy choices available to devolved administrations and legislatures in areas of devolved competence including the environment.”
That perhaps relates more to the previous amendment, Amendment 80A, but also to the amendment before us now.
The report goes on:
“There are already diverging environment and climate change goals across the UK, which could indicate challenges ahead. We urge the Government to address any concerns raised by the devolved administrations regarding the TCA’s environment and climate change provisions—via the Common Frameworks programme or other routes—as fully and promptly as possible.”
Scotland has now set up its equivalent to the office for environmental protection, the name of which escapes me completely—I think it is Environment Services Scotland—so it has an operation that is already up and running. We will not have ours in place until July. Have any issues already arisen in this regard, as we are slightly later in our programme than we would have hoped to be? Also, have any of these issues been identified and raised under the common frameworks programme? That is in addition to my earlier question about, for example, the water framework directive.
With those few remarks, I am delighted to lend my support to Amendment 81A.
My Lords, I understood that the noble Baroness, Lady Bennett, had withdrawn from this debate—but she is shaking her head at me, so I assume that she wishes to speak. I think I should make it clear that her name is listed as having withdrawn; however, I will call her now.
Thank you. There was an administrative snafu, which I understood had been sorted out. I apologise. I did not mean to withdraw from this debate and thought that it had been fixed.
I will be very brief anyway. It is a great pleasure to follow the noble Baroness, Lady McIntosh of Pickering, and to thank the noble and learned Lord, Lord Hope of Craighead, for this amendment. I wish to speak to it briefly to highlight the way in which it helps to stress and shows the interaction between this Bill and so many other Bills, and the fact that the environment is now part of everything we do and there will be environmental impacts on all legislation.
What we are talking about here is a way of finding joined-up government, so that we do not have the siloed thinking that says, “This is environment and this is security and this is education”. My understanding of what the noble Lords who tabled this amendment are trying to do is get a functional way to do this—and it is very important that we do, so I thank them for their efforts. We need to make sure that Clause 19 really works for the future operation of the law and of government.
My Lords, it is a pleasure to follow the noble Baroness, Lady Bennett, and to agree with her on this occasion—at least in some respects.
I have much sympathy with this amendment, for an important reason. The noble and learned Lord, Lord Hope of Craighead, and my noble friend Lady McIntosh of Pickering seem to be asking that Her Majesty’s Government ensure that the effects of this provision on environmental protection under existing environmental law are considered before any Bill is introduced, rather than rushed out for Second Reading. If this new vetting procedure for all our Bills can be justified and agreed, I support the noble and learned Lord, Lord Hope, in thinking that it would be better to have it done earlier, so that it informs policy on the Bill in question and can be studied before Second Reading. Indeed, I would like to see the same for other impact assessments.
Following on from earlier questions, could I also understand—simply, if possible—how the system will work? Does my noble friend see a parallel with human rights statements? As I recall from my time on the Front Bench, the relevant policy Minister studies these, talking to his or her legal team, then signs and deposits them in Parliament, where they can be considered by the relevant committees. It would be good to understand whether that is what is envisaged and possible here.
My Lords, I will be brief. After what was a fruitcake of amendments, we are now on a fairly simple Madeira cake—but it is no less welcome. I am grateful to be noble and learned Lord, Lord Hope of Craighead, for his forensic approach and for tabling this probing amendment. We need to be absolutely clear what is the purpose of this clause if we are to ensure that the Bill helps parliamentarians in future—including Select Committees, as the noble Baroness, Lady Neville-Rolfe, mentioned—properly to scrutinise the effects of proposed legislation to ensure that it is compatible with the Government’s environmental goals. So we welcome the approach of this probing amendment.
My Lords, I, too, shall be quite brief. I am grateful to the noble and learned Lord, Lord Hope, for tabling this amendment. As he says, it is probing and, as ever, he set out very eloquently the reason why it is important. I have listened carefully to his analysis and very much agree with what he said.
As we discussed in the previous group, throughout consideration of the EU withdrawal Bill, we were reassured that environmental protection would be at least as good as that which we enjoyed in the EU. However, it is already clear that the wording in this Bill on environmental principles is a weakened version of what has gone before, particularly in the need to have only “due regard” to the policy statement. The academic experts giving evidence on the pre-legislative scrutiny of the previous version of the Bill concluded that
“the Bill does not maintain the legal status of environmental principles as they have come to apply through EU law.”
Now the noble and learned Lord, Lord Hope, is rightly raising the issue of making new environmental law, as set out in Clause 19. His amendment would require that the level of environmental protection under existing environmental law should be clearly spelled out before it is possible to say, in Clause 19(3), that any new legislation will not reduce the level of environmental protection under existing law. It would remove any ambiguity and provide a double lock on protections for future environmental legislation.
At the same time, we should acknowledge that regression often happens by stealth, and can occur at a number of levels, not just in primary legislation. For example, it could appear in secondary legislation or in the detailed policy proposals that precede it. Therefore, ideally, the scope of this provision should include secondary legislation as well. It would also make sense for a statement of this nature to be published at a much earlier stage, as part of any consultation or before a new Bill was introduced. As we have discussed in other contexts, we need accurate baseline evidence, including about the impact of existing legislation, before we can assess the effectiveness of any measures proposed in any new legislation.
So we share the concerns that the noble and learned Lord has raised in this amendment and very much hope that the Minister will feel able to take these issues on board and give a positive response.
I thank the noble and learned Lord, Lord Hope of Craighead, for his Amendment 81A. It summarises in many respects the purpose behind Clause 19 very well. The clause is aimed at delivering accountability through transparency. It guarantees that effects on the level of environmental protection are considered before a Bill is introduced and will ensure that the environment will receive the close attention and appropriate consideration it deserves in the policy-making process.
I should like to provide some more detail how it will work in practice, in response also to questions raised by my noble friend Lady Neville-Rolfe. The statement under Clause 19 will take the form of a short, written statement in any new Bill that contains a provision that, if enacted, would be environmental law. The statement would confirm that the Minister was of the view that the Bill contains an environmental provision, and would set out that the Minister believed that the existing levels of environmental protection would not be reduced.
Bills are accompanied by a range of documentation to aid Parliament in its scrutiny of legislation, including the Explanatory Notes and Delegated Powers Memorandum. These are produced by convention, rather than being required by legislation. Clause 19 is designed to ensure that Parliament has the necessary information so that it can properly scrutinise legislation that affects the environment. The Government will consider what arrangements may be appropriate for specific Bills. I assure noble Lords that we will engage with the authorities in both Houses prior to implementation. As Clause 19 is straightforward in its purpose and current wording, I do not think it is necessary to reiterate it in the Bill.
I should also like to take this time to respond to colleagues in the devolved Administrations who have requested some reassurances on the implementation of this clause. Incidentally, the organisation that my noble friend Lady McIntosh referenced is called Environment Standards Scotland. The statement under Clause 19 will take into account the extensive discussions held with the devolved Administrations throughout the development of any new Bill that includes provisions with implications for them. Engagement with the devolved Administrations will be in accordance with the memorandum of understanding on devolution, or any arrangement that replaces it, and the practices outlined in the devolution guidance notes. My noble friend also asked about working with the devolved Administrations, and I hope I have addressed her concerns.
Once again, I thank the noble and learned Lord for his amendment and beg him to withdraw it.
My Lords, I am very grateful to all noble Lords who have spoken in this short debate. I must thank the Minister for his very helpful remarks, which have reassured me and, I hope, other noble Lords, that there is real purpose behind the clause. As the noble Baroness, Lady Bennett of Manor Castle, said, the clause really must be made to work, and I think he has explained how, given the information that will be revealed, it will indeed achieve that purpose.
Part of my concern was that perhaps the Government are taking on too much, because one should not underestimate the increasing reach of environmental law, but it is very important that the reach should be carefully considered. As the noble Baroness, Lady Neville-Rolfe, said, we want to be really sure that the matter is carefully thought about before the Bill is introduced, and I am reassured by the Minister saying that that indeed is the purpose of the clause and that the clause will achieve it.
For those reasons, I am happy to withdraw the amendment.
Amendment 81A withdrawn.
Clause 19 agreed.
Clause 20 agreed.
We now come to the group beginning with Amendment 82. Anyone wishing to press this or anything else in the group to a Division must make that clear in debate.
82: Before Clause 21, insert the following new Clause—
“Office of Commissioner for Environmental Protection
(1) The office of Commissioner for Environmental Protection is established.(2) It is for Her Majesty by Letters Patent to appoint a person to be Commissioner for Environmental Protection.(3) Her Majesty’s power is exercisable on an address of the House of Commons. (4) It is for the Prime Minister to move the motion for the address.(5) To do so the Prime Minister must have the agreement of the person who chairs the Environment Audit Committee.(6) The person appointed holds office for 10 years, and may not be appointed again.(7) The Commissioner for Environmental Protection is by that name to be a corporation sole.(8) The Commissioner for Environmental Protection is to be an officer of the House of Commons.(9) But section 4(4) of the House of Commons (Administration) Act 1978 (which provides for the application of provisions of that Act to staff employed in or for the purposes of the House of Commons) does not apply in relation to the office of Commissioner for Environmental Protection.(10) The person who is Commissioner for Environmental Protection may not be a member of the House of Lords.(11) The Commissioner for Environmental Protection is not to be regarded—(a) as the servant or agent of the Crown, or(b) as enjoying any status, immunity or privilege of the Crown.(12) The person who is Commissioner for Environmental Protection may not hold any other office or position to which a person may be appointed, or recommended for appointment, by or on behalf of the Crown.(13) Before a person is appointed as Commissioner for Environmental Protection, remuneration arrangements are to be made in relation to the person jointly by the Prime Minister and the person who chairs the Committee of Public Accounts.(14) The Commissioner for Environmental Protection may resign from office by giving written notice to the Prime Minister.(15) Her Majesty may remove the Commissioner for Environmental Protection from office on an address of both Houses of Parliament.”Member’s explanatory statement
This amendment is to help secure the independence of the OEP by making its chief executive a separate office holder appointed by the House of Commons. It is modelled on provision made for the Comptroller and Auditor General under the Budget Responsibility and National Audit Act 2011.
My Lords, I know this group of amendments is unlikely to find favour with Defra. While I normally contribute to our debates in this House in what I hope is a dispassionate, calm manner, I have to say that on this occasion, I feel quite passionate about this issue. I am what I would describe as “a very cross Bencher”.
In the early days of Brexit planning, we were promised that we would have as near a replication of the EU environmental oversight of our organisations as is possible. At the time, Michael Gove, the then Secretary of State, was reported as saying that he thought that putting Defra in charge of the OEP would not be suitable. As ever, he was right.
The OEP will be at the centre of our country’s new environmental future post Brexit. We all have great hopes and expectations for it—some, I suspect, possibly too high. But within all our ambitions to secure a cleaner, more sustainable and more biodiverse future, I cannot stress how important it is that we get the OEP right—and at the moment it looks as though it will be a mere tool of the very body it should be overseeing.
I know that the EU regime we are leaving could not possibly be the same as any domestic arrangement we might replace it with, but, as I say, in the early days we were promised “an equally effective regime”. So it is worth reiterating what various ex-Ministers have said: namely, that in the past, the mere threat of the EU Commission taking action against the Government had departmental Ministers and Secretaries of State quaking in their shoes. And you can understand why. As an example of the punishments doled out by the ECJ, at the behest of the Commission, in 2014 Italy was fined €40 million, with an additional fine of €42.8 million every six months that the issue of dumping illegal waste remained unresolved—as I believe it did for at least one six-month period. Again, in 2015, Italy was fined €20 million and a further €120,000 each and every day that the region of Campania failed to resolve its waste-management problems.
The interesting thing about that last case is that it was the Italian Government who were fined, not the regional council of Campania, which was at fault. I say this because when Professor Macrory—who I see has now joined the shadow OEP board—gave evidence to our Lords environment committee last year or the year before, he emphasised that the Commission infringement proceedings were always directed at Governments, even if the breach was by another public body. He argued that, if possible, this should be replicated post Brexit, with the OEP’s enforcement powers being directed solely against Secretaries of State. But of course, that would be impossible under the current proposed arrangements, because it would mean the Defra Secretary of State taking himself to court.
In this context, it is worth remembering that the EU Commission took the UK to court for infringement 34 times in total and won 30 times. There is no reason to suppose that the frequency of infringements by UK public bodies will not continue into the future. Why would that change? Our institutions remain as fallible and, dare I say it, as underfunded as ever. But now, the Secretary of State will stand between the OEP and the infringing body, rather than taking the hit, as he or she should.
I must repeat what I said at Second Reading: this has nothing at all to do with our trust in the present Ministers, in whom I recognise a total commitment to the environment, but we have to think what will happen if, in the future, we find ourselves with a disinterested, or maybe just incompetent, Secretary of State and an overcontrolling department. The decisions that we make in this Bill could still be affecting the governance of our environment in 40, 50 or even 60 years’ time. So I say again: the auditing and bringing to book for environmental rule-breaking by our relevant public bodies, the most important of whom are within the Defra family, is unlikely to happen when Defra gives the guidance to, and controls the budget of, the OEP.
Let me tell you a story. I had a friend who was a regional director of MAFF in the 1980s. He had a farming neighbour who had a grouch about some MAFF policy—I am afraid I cannot quite remember exactly what it was—and he asked my friend to help him write a letter to the Secretary of State. Of course, in those days he was called not the Secretary of State but the Minister of Agriculture. Anyway, in due course the Minister, having received the letter—largely written by my friend—sent it down to my friend, the regional director, and asked him to draft a reply to him, refuting the farmer’s complaint. So my friend, no doubt employing his best departmental penmanship, wrote the reply for the Minister to send to the farmer. And then, of course, the farmer brought the Minister’s letter to my friend, asking him to help draft a further response for him to send back to the Minister. And so he did. Rather like someone playing chess against himself, he ended up having quite a long, rather enjoyable, correspondence with himself over several months, writing letters for both sides of the argument.
You can see where this is going, because that is precisely what will happen when, for instance, the OEP is threatening the Environment Agency with proceedings. The Secretary of State may not be actually writing the correspondence, but you can bet that he will be monitoring it and ensuring that, in whatever is said by either side, no blame could possibly fall on either him or his department. We know for sure that many of the current failings of the Environment Agency and Natural England are a direct result of them being starved of funds by Defra—and, also, incidentally, being subtly indirectly controlled by that department. So much for Professor Macrory’s wish that the buck should always stop with the Secretary of State.
Just last week, I was talking to an organisation about our rivers, and it was saying that it is lawlessness out there, because no one is monitoring, inspecting or enforcing the rules on our rivers, since the Environment Agency has been starved of funds in this respect. That is what it said, and when you read the evidence given to the Environmental Audit Committee last month, it is clear that it is right. The buck should stop with the Secretary of State, or at least his department, and he should definitely not be the one controlling the buck.
That brings me to the Minister’s claim, in his admirably full letter to us all last week—for which I thank him very much—that the OEP will be a non-departmental body. I am afraid that, in my view, the phrase “non-departmental body” is widely overused and wrongly applied in today’s political world. As an ex-chair of the Countryside Agency, I can say that it was not always thus—at least, it was not when I reported to the Department of the Environment, before we came under the control of Defra—but in the modern political climate of total control from the centre, free-speaking bodies within Government are no longer tolerated.
There is no doubt in my mind that, like the Environment Agency and Natural England, the OEP in its present guise will be very much a departmental body. I should say that this is a phenomenon not unique to Defra: at DCMS, for instance, the Secretary of State went ahead and appointed a new chair of the Charity Commission in spite of the DCMS Select Committee voting unanimously against his choice. That could happen with the next OEP chair, although again I state that the current chair has universal support, including mine, for her appointment. My main point is that the OEP must not only always be independent of Defra, but it must be seen to be independent of Defra, and at the moment it is neither. I find that very worrying.
Our amendments are based on both the National Audit Act 1983 and, as the explanation says, the more recent Budget Responsibility and National Audit Act 2011, and what they say about the National Audit Office and the Comptroller and Auditor-General. I must confess that, in spite of the consummate skill of the Public Bill Office—my particular thanks go to Theo Pembroke for his advice—in a few necessarily brief amendments in Committee it is not possible to replicate, with all the necessary and complicated detail, what should probably be a Bill in itself, or, at least, a full chapter in this Bill. It is a principle that we are trying to get across here, so please do not pick us up too much on any perceived gaps and omissions.
The main point is that the NAO can take any department or public body to task for its financial controls and performance. It reports to the Public Accounts Commission, which also sets its budget. The NAO is a well-established part of the checks and balances in our governmental system, dating back to the time of Gladstone. So you see how long these institutions last; that is why we have to get this right. Everybody knows and understands that businesses, public companies and, indeed, public bodies need their finances audited by an independent body—I stress that word “independent”. We are saying that, while the OEP’s budget should also be set and monitored by the Public Accounts Commission, it should report to the Environmental Audit Committee. We need those same checks and balances now in our environmental governance as well as our financial governance. We cannot afford to let Defra just mark its own homework.
With the focus on climate change and the environment in this year’s COP 15 and COP 26, the environment will predominate in the minds of the public. I believe our businesses will emerge from Covid riding on a wave of new environmental enthusiasm. The young are very supportive of the green agenda and are mostly happy to put their money and, sometimes, their careers, behind it, and they will never forgive us if we let them down. Meanwhile, businesses, both large and small, are beginning to investigate the need to have an independent environmental audit to report to their shareholders as well as their statutory financial audit—note again that word “independent”. Governments, especially, should also have an independent environmental audit. The future of our rivers, air, climate and the biodiversity of our flora and fauna all depend on it, but at the moment that is not what is planned.
I know that many noble Lords will think that these amendments are a step too far, and “Why don’t we just fiddle at the edges of what we have been presented with?” But I really do not think that that is good enough. I realise that the art of the possible is the byword of most politicians, but there comes a time when you have to stand up and try to move “the possible” in the right direction—in the direction of what we all know is the public interest—and not kowtow to a department trying to overcontrol its own agenda. I beg to move.
It is a great pleasure to follow my noble friend Lord Cameron. Like him, I am very much a “cross”-Bencher in this case. I have been looking through the Second Reading document and would say that there are many cross Lords, all across this Chamber and wherever they are beaming in from, who also completely agree with what he says about the necessary independence of the OEP.
It is extremely chilling to read Defra’s power under Clause 24 to issue guidance on how the OEP should behave and what it should do. At the end of the day, it is the department for the environment but also agriculture and food. Those two areas make up such a massive part of the climate change agenda, how we use our land and how we will reclaim our biodiversity for the future of this whole country. The thought that advice on the levels of control should be given in that department seems quite absurd but also very sinister. Either this is really cowardly or it is an agenda that wants to conceal.
My noble friend Lord Cameron pointed out various cases in which big fines have been able to be issued. Will the Government really be able to fine themselves for transgressions relating to chemicals, the use of neonicotinoids and all the things the EU can cope with at the moment?
Earlier this afternoon I spoke about the grubbing up of trees at the barracks near Grantham. When the Minister answered us, he said that neither he nor his colleagues wanted to see any of these grubbed up. I have used the intervening time to look up the remit of Homes England. This is what its website says—it is such a good quote:
“We’re the government’s housing accelerator. We have the appetite, influence, expertise and resources to drive positive market change.”
If you scroll down to look at what it is responsible for and its priorities, there is not one mention of the word “environment”, climate change or care and attention to how we live. I wonder how this will work out if a case is brought by those children—by Callum McLelland, the 15 year-old who planted a tree when he was seven. If he decides to bring a case, will Defra say, “We don’t want this case”?
I also point out that, like my noble friend Lord Cameron, I do not doubt for a second the authenticity and sincerity of the current holders of the office, both in this Chamber and in the other place. I know they mean what they say and do their best, but this is statute that has to stand for ever. It will probably stand when we are all dead.
For instance, I would like to bring to noble Lords’ attention the situation with the recent Australian trade deal. As I understand it, Defra did not approve of it, but it was overridden by the department for trade. We will accept animals into this country such as sheep that have been subjected to the practice of mulesing. If any noble Lords do not know what that is, it is the process of ripping the skin off a lamb’s backside so that it forms scar tissue and then is not vulnerable to flies. The department for trade won.
Government is complicated and messy. There are lobbyists, and a lot of money is being thrown around. The Tory council of Horsham, where Knepp is threatened by 3,500 houses—this was in the Sunday Times eight days ago—has received £600,000 from these developers. There is much going on like this. We need an agency that can stand up to it, act quickly and with independence and that does not have to run to the Minister and say, “Is it okay if I do it?” Please support my noble friend Lord Cameron’s excellent amendment.
I am delighted to support and speak to the amendments in this group. As we are considering in detail a number of amendments relating to both the independence of the OEP and its budget, resources and staffing, I will keep my comments on this group limited to parliamentary oversight and scrutiny.
The noble Lord, Lord Cameron, and I served together on the EU Environment Sub-Committee, and I think he is the sole survivor of that committee to now be on the Environment and Climate Change Committee. He carries the candle for us all in that regard. I am grateful to him for tabling these amendments and agree entirely that we were promised oversight as near as possible equivalent to and as effective as that which pertained through our membership of the European Union, and that my right honourable friend Michael Gove, in the other place, said that it would be inappropriate for Defra to be in charge in the way that, it has now become apparent, it will be.
On balance, I prefer the amendment in the name of the noble Baroness, Lady Jones of Whitchurch, supported by the noble Baroness, Lady Young of Old Scone, which would ensure that appointments would not be made without the consent of the Environment, Food and Rural Affairs Committee and the Environmental Audit Committee. On a number of occasions during my tenure as chair of the EFRA Committee, we conducted pre-appointment hearings. I do not know whether there was a pre-appointment hearing in this case, but we know that Dame Glenys Stacey is now in place. My first question to my noble friend is: was there such a pre-appointment hearing? Was it carried out by one, the other or both of those committees? I think I am right in saying that Amendment 85 breaks new ground in suggesting that the other non-executive members of the OEP would also face a pre-appointment hearing. I do not know whether that has ever happened before.
The reason why the amendments are so welcome, particularly Amendment 85, is that it gives us the opportunity to ask my noble friend to set out precisely what the parliamentary oversight of the OEP will be. I argue very forcefully not just for a pre-appointment hearing by the two committees in the other place but for opportunities to have the chair of the OEP, Dame Glenys Stacey, in annually for a full review of its work.
It is important to ask my noble friend one last question. When we were preparing the report to which I referred earlier, Beyond Brexit: Food, Environment, Energy and Health, the Secretary of State told the EU sub-committee—he is quoted at paragraph 162 of the report—the following:
“It is important to note that the chair of the OEP, Dame Glenys Stacey, has already been appointed and is in post … It is already able to receive complaints. Until it has its full legal powers, there is a limit to what it can do to act on those complaints. If the European Union wanted to have dialogue with the OEP for the purposes of that part of the agreement, which really is only about cooperating and sharing, there would be nothing to prevent that from happening in this early stage.”
I would go further and press my noble friend to ensure that there is an obligation, particularly in the early stages while the OEP is being set up and finding its feet, to have regular contacts with the European Commission to find out its exact approach. It may take a different view, but it would be helpful to have at least some background in this regard. It is my certain understanding that Environmental Standards Scotland has already had such contact. It would be highly regressive and retrograde if the OEP, representing England, did not replicate that.
I am also concerned—I hope my noble friend will put my mind at rest—that it should not be in any shape or form admissible or possible for the Secretary of State for Environment, Food and Rural Affairs to lean on the independent chair of the OEP and suggest that she not take up a complaint, were she minded to do so. According to my current understanding of the OEP’s composition and independence, the situation in that regard is by no means certain. I commend these amendments, and in particular I have great sympathy with Amendment 85.
My Lords, the noble Lord, Lord Cameron of Dillington, introduced his amendments extremely well. There is not much I can add except to say that it is widely recognised across the House that the office for environmental protection is not currently fit for purpose—it is too weak and easily ignored. It is therefore pretty much a done deal that your Lordships’ House will amend this Bill to strengthen the OEP. I hope that when we do, we can come up with the strongest possible options.
The OEP needs status as well, which the noble Lord, Lord Cameron, pointed out. The amendments would give it that status and, more importantly, they would help to ensure the independence of the office, establishing the commissioner by letters patent from the head of state, which would prevent the Government meddling. That is the sort of level of ambition that we should be setting for our environmental watchdog. Parliament is also the proper place for the OEP to be accountable to. The point made by the noble Baroness, Lady McIntosh, about exactly how that will happen was quite useful.
Getting the appointments process right is a key step towards ensuring the strength of the OEP. Its members cannot be hobbled by the Government, cherry-picked by Ministers, or be friendly with the Government. I therefore look forward to discussions over the coming weeks to get this right, and I hope that the Minister will work co-operatively with noble Lords from across the House. Anything less would be to consign future generations to a poorer, dirtier, sadder life, and none of us wants that.
The noble Lord, Lord Inglewood, has withdrawn, so I call the noble Lord, Lord Krebs.
My Lords, before I turn to the amendments in this grouping, I refer to a comment that the noble Earl, Lord Caithness, made in relation to the grouping including Amendment 73 when he pointed out that the Minister had not actually answered my question. In his reply the Minister said he had answered it, but I will just repeat the question which he did not answer—I do not expect him to answer it right now but I hope he will at some point. I said: “Can the Minister explain why he considers the introduction of proportionality necessary, when the precautionary principle, according to the High Court, already includes proportionality?” I then went on to quote in detail the judgment of 28 May 2021 from the High Court. I therefore hope that at some point the Minister will respond to that question.
I support all the amendments in the group including Amendment 82 and I am especially grateful to my noble friends Lord Cameron of Dillington and Lady Boycott for leading us into what is perhaps the core debate of the Bill: the role and nature of the office for environmental protection. As has already been said, this is the first of a series of amendment groupings that we will discuss in the coming hours which deal with the independence and enforcement role of the OEP.
The Government promised us a strong and independent OEP and, as we have already heard, many of us feel that we have been short-changed. I remind your Lordships of a score line: 25-0. This is not the forecast for the England-Germany game tomorrow but the number of speakers at Second Reading who expressed concerns about the OEP not having enough independence or teeth—25—versus those who thought it had too much of both: zero. There is no doubt about the strength of feeling across the House on this matter. As others have already spoken with great force and clarity on the issues, I wish to add only one personal anecdote, relating to ministerial involvement in appointments. This is particularly relevant to Amendment 85 in the names of the noble Baroness, Lady Jones of Whitchurch, and the noble Baroness, Lady Young of Old Scone.
A few years ago, when I was chair of the Adaptation Committee of the Climate Change Committee, I went through the standard appointments procedure to select two new committee members. The selection panel was chaired by a Defra senior civil servant and included the requisite independent member. The panel unanimously agreed on the two best candidates. The then Secretary of State rejected both candidates because she did not think they had the right profile to serve on the committee.
If we are to have confidence in the genuine independence of the office for environmental protection, there has to be some transparency and independence about the recruitment, not just of the chair but of board members, as proposed in Amendment 85. I therefore hope that the Minister will take that amendment and the other amendments in this grouping seriously and that he will respond appropriately.
My Lords, while I do not support every detail of Amendment 82 and tend to prefer Amendment 85, the amendment in the name of my noble friend Lord Cameron of Dillington makes a very important point of principle, which I support. The independence of the office for environmental protection is crucial if it is to have public confidence. As the Constitution Committee, of which I am a member, said in its report on the Bill:
“It is essential that such an important public body be independent of the government.”
It is true that paragraph 17 of Schedule 1 states:
“In exercising functions in respect of the OEP, the Secretary of State must have regard to the need to protect its independence.”
The question is whether the provision in Schedule 1 is sufficient and appropriate to ensure that independence. I very much doubt that it is sufficient, which is why I said what I said at the beginning of this intervention.
The amendment, which provides for the appointment of a commissioner who is to be the chief executive of the OEP, would be well worth considering as an additional safeguard for the composition of this very important body, as indeed the alternative suggestion in Amendment 85 would be.
The provisions of Clause 24 about guidance by the Secretary of State to which the OEP must have regard in
“preparing its enforcement policy, and … exercising its enforcement functions”
are worth bearing in mind, because they show how important it is that it should be seen to be independent when, as will so often happen, a government proposal raises environmental concerns. The words “have regard to” are not the same as “must follow”. They leave room for independent thought and judgment. It is that aspect of independence which is so important, and why the amendment in the name of my noble friend Lord Cameron is so well worth considering carefully in this debate.
My Lords, the noble Baroness, Lady Young of Old Scone has withdrawn, as she is listed twice on this list and will not be speaking in either place, so I call the noble Lord, Lord Cormack.
A few moments ago the noble Lord, Lord Krebs, referred to this as the core amendment of the Bill. In many ways it is, because the success of the Bill depends upon having a totally independent, vigorous, courageous person who can stand up to any Minister and who has the authority to call the Government properly to account for infringements of an environmental nature. One thinks of the debate we had last week about the pollution of rivers and the ability to fine—the noble Lord, Lord Cameron, in his admirable introduction to his amendment talked about the swingeing fines that have been imposed upon Italy, among other countries.
If the Bill is truly to become a landmark Act of Parliament—again I use those words, which have been used so often—it has to stand the test of time. We are not legislating for the next five years or even for the next 25 years—a figure that has cropped up before. We are legislating to lay the foundations for an environmental system that our grandchildren—in the case of some of us, our great-grandchildren—will depend upon. We cannot be fobbed off with the answer that this is more or less another function of the Secretary of State. The noble Lord, Lord Cameron of Dillington, has spelled out many things—I do not agree with all of them—which are of great importance to us all.
I have some doubts about appointing a person for 10 years; I would prefer the electoral cycle of five years, although emphatically not to coincide with a general election. I would be entirely happy with an appointment for five years, to be renewed for another five years, but not longer. So I agree with the noble Lord, Lord Cameron of Dillington, on the overall length, but we have to be a little cautious about appointing any individual for a 10-year period. Things can go wrong, and it can be very difficult to get rid of people who are not fulfilling their function.
This is a minor point, but I also think we should not rule out Members of your Lordships’ House. We have a number of people who are highly accomplished and who could fulfil such a role. Of course it would be necessary to stand down from active membership of the House, as the noble Lord, Lord Smith of Finsbury, did, but we have provision for that. It is possible to take leave of absence, and if anybody is appointed to a very important position, as the noble Baronesses, Lady Ashton and Lady Amos, were, they do not function as a Member of the House during that period. To rule out somebody by virtue of his or her membership of the House is wrong and unnecessary.
The noble Lord, Lord Cameron, hit on many other important points. There has to be a degree of independence. He talked about the Comptroller and Auditor-General as an example on which he has drawn. There has to be independence and vigour and strength—it is crucial.
The noble Baroness, Lady Jones, in her inimitable way, talked about Report. I say to my noble friend, not in any spirit of threat, that there must be meetings with Members of your Lordships’ House between now and Report, otherwise the Government will get a lot of egg on their face and the possibility of a 1 November deadline will vanish. I do not say that in a threatening spirit and, in particular, I say it in no spirit of animosity towards any of the Ministers concerned, either my noble friend or those in the other place. A number of people, including the noble Lords, Lord Cameron and Lord Krebs, have made that point this afternoon. We are not expressing doubt in their sincerity or wisdom, but we are saying that if they are creating something for generations to come, they have to bear certain things in mind. We do not need recent examples to remind us that Ministers do not always end in a blaze of glory.
This is a core amendment. It is something that I, and I am sure others, would like to sit down and discuss with my noble friend before Report. If we can reach agreement by compromise or discussion, it is always better than dividing the House, because if any Bill deserves—needs—the support of Members in all parts of your Lordships’ House, it is this one. The environment we are talking about is ours and, far more important than that, we are legislating for the environment of our children, grandchildren, great-grandchildren and beyond, otherwise there is that fear of extinction, about which we talked the other day.
I support the spirit of all these amendments and very much hope that we will be able to come to a collective decision that will enhance the Bill and make it a Bill that has real teeth, with a body created by it that has real teeth and can deal with real problems in a vigorous way.
My Lords, I am very happy to support Amendment 82. I thank the noble Lord, Lord Cameron, for dealing with it so comprehensively that I feel there is little more for me to say.
I speak to support the view that the office of environmental protection must not only have teeth but must be totally independent from all strands of government. There are many good reasons for this. Independence is, in a way, self-explanatory and a good thing in itself, but it is even more important to spell out that it must be independent of government when the judgments it will have to make may well be on cases in which a government department is involved. Additionally, I suspect there may be environmental transgressions, such as on effluent disposal, where much tougher punishments are required, and in some cases present legislation may be adequate but it is simply not being enforced correctly. The culprits may well have links to the Government, or the Government may, for various reasons, not be prepared to take as strong a line as they should.
In summary, it has been described as a core part of the Bill. I am not too sure what significant difference to the protection of our environment the creation of this office will have. I suspect much will depend on the approach and, more importantly, the resolve of the person appointed to the task. By giving it true independence, we can at least give it the best possible start.
My Lords, when the office of environmental protection was mooted, I hoped it would be on the same basis as the Climate Change Committee, and be totally independent of government. When that was not the case, I hoped that the structure of the Bill would be that advocated by the noble Lord, Lord Teverson, and that that part of the Bill should be within the remit of the Climate Change Committee, which is sufficiently independent.
I remember when I was a Minister, and that was many blue moons ago now, being quite irritated at times by the interference of Brussels. We had perhaps some of the best civil servants in the whole of the EU then; my advice was excellent, and I thought that what we were doing was right. But on reflection, perhaps we were not that right. I remember I once lost a Division and went to the Leader, the late Lord Whitelaw, and said to him, “Willie, I’m terribly sorry, I lost that amendment”. He looked at me and said, “Malcolm, perhaps they were right”. Perhaps the Government are wrong on this occasion. As I see it, the problem is that Defra will remain judge and jury, and there is a route for disaster.
I shall give two examples. One example is the water authorities, which I helped to privatise in the mid-1980s. My friend, the late Lord Ridley of Liddesdale, made a revolutionary change in policy by taking control of pollution away from the water authorities and handing it to the National Rivers Authority. The water authorities were outraged, but it was right. What went wrong was that the NRA was amalgamated into the Environment Agency, and the money for the Environment Agency was reduced so that the controller of the polluting companies did not exercise the brake that was needed. We talked about that a couple of days ago.
The other government department that is a classic example of judge and jury is the Forestry Commission. I know that my noble friend on the Front Bench agrees that the Forestry Commission has been an utter disaster for this country. It has cost the taxpayer a huge amount of money and planted the wrong trees in the wrong places with the wrong policy. I hope that that is beginning to change. I have been banging on in this House on that for more than 50 years, but at long last I am being proved right.
I would really like the OEP to be seen to be independent. Not only does it have to be independent, which it is not under the Bill—as the noble and learned Lord, Lord Hope of Craighead, said, the schedule is not strong enough—it has to be seen to be independent. My noble friend Lord Cormack was right: this is better done by negotiation. The Government will get defeated on Report on this, but it would be far better if we got an amendment that we could all sign up to, because that would send a message to everybody who will be affected by the Bill—which is the whole of the country—that there is unanimity in Parliament that that is the right way forward. At the moment, as I said to my noble friend when he was kind enough to have a meeting with me, I am unhappy with the OEP. I am not quite certain what the right amendment is, but I know that there is one out there if we all make an effort to get it right.
My Lords, there has been near unanimity in condemnation of what is currently in the schedule to deliver a really independent body of the kind we want. As the noble Lord, Lord Cameron, said in a formidable opening address on the group, we want to create the same degree of fear, almost, in public bodies that the possibility of the European Commission intervening and fining this country provided before Brexit. What is envisaged in the Bill goes nowhere near that.
Frankly, we know that there are precedents for what happens to so-called independent bodies. I had expected to speak after my noble friend Lady Young and just before my noble friend Lord Rooker. It is instructive that one was the chief executive of the Environment Agency and the other the chair of the Food Standards Agency. When the Environment Agency was first set up in the 1990s, to which the noble Earl, Lord Caithness, just referred, there was a lot of talk about independence, but in fact it became part of the Defra family. Its independence was limited by successive Governments over the whole of that period. Under the coalition Government, it was restricted from briefing parliamentarians or engaging in anything that amounted to a campaign in the eyes of the then Government. Subsequently, of course, its funding has been seriously cut. The Environment Agency is doing an effective job on limited resources, but it is not independent of government.
The other example is the Food Standards Agency. The FSA is a non-departmental body, but as soon as it started straying into areas of interest to the Department of Health on diet, health advice and well-being, those functions were taken off it and ploughed back into the Department of Health. It was right to take it out of its origins in MAFF, but in practice it was never completely independent of government, much though the efforts of my noble friend Lord Rooker and others tried to make it so.
We want a truly independent body on the environment to face up to the immense challenge of climate change and biodiversity diminution. This is not it. I agreed with pretty much every word that the noble Lord, Lord Cameron, said. I do not entirely agree with his amendment—like others, I prefer the amendment in the name of my noble friend Lady Jones of Whitchurch—but, as recent speakers said, the Government really do need to take notice of the overwhelming view of the Committee that this will not do. To be truly independent, the OEP needs not just a formal position and designation as a non-departmental body; it needs powers, which are insufficient in the Bill; it needs provision for how its composition is established, which is not fully in this Bill; and it needs powers of enforcement, which we will consider later in Committee and which are, at the moment, clearly completely inadequate to the task.
This is the central part of the Bill. The Government have to think again. If they can come up with a better proposition then let us seriously consider it, but what is in the Bill at the moment is not adequate. None of us believes that it is, and I doubt whether the Government themselves—and the Minister in particular, if I may say so—really believe that it is. Let us think again and try to get something better before the Bill completes its course.
My Lords, I agree on the importance of this part of the Bill. Indeed, it is the only part of the Bill that I dealt with at Second Reading, on governance issues. The noble Lord, Lord Cameron, introduced Amendment 82 very well. We might argue, but as the noble Lord, Lord Cormack, said, somewhere there is an alternative to what is in the Bill. We just have to find it, because the Minister and his advisers will appreciate that this will not get through the House.
I sat on the environment sub-committee of the Lords EU Committee for a few years. The early promises about the governance gap are not being filled with this Bill. I will not quote again the article that Michael Gove wrote in November 2017, when he was Defra Secretary of State, accepting the fact that there is a gap, but I will refer to what the noble Lord, Lord Cameron, referred to, which is the 30 out of 34 wins by the European Court of Justice on environmental issues. You have to ask yourself about this: it won on 30 out of 34 cases. That meant that the UK Government were refusing to do something that caused them to be taken to court. Both parties were involved, by the way. The UK Government did not want to do something—whether it was cleaning up the beaches, making water safer, it does not matter: they did not want to do it. But the European Court of Justice and the Commission took the case to the court, and the court decided, “Yes, you will”, in 30 cases out of 34. When I checked, the other four were undecided.
I know from my own experience inside the department that the threat of infraction meant that you got cracking, talked to the Treasury and said, “Look, we ought to do this. Can we have a few more quid or move some budgets around to satisfy this? Otherwise, we’ll be penalised with a bigger fine than what this will cost us.” That is what actually happened in some cases. I know from experience that this is the way that it works.
I also know, of course, that Defra loves control. In my first two years as a Minister, from 1997 to 1999, I was at MAFF. I was then at Defra from 2006 to 2008—the same department, basically. The point that I am making is that the culture was the same; it was about control. This probably would not happen, but it would be very interesting to have some interviews—exit interviews would be the wrong thing—with people who are no longer serving on some of the bodies, particularly Natural England and the Environment Agency, as to what happened. I know to my certain knowledge that Defra leant on Natural England.
When we were setting up the Food Standards Agency in 1998 and 1999—I might add that my noble friend Lord Whitty was wrong on this, as it is a non-ministerial department with a different structure from a non-departmental public body—I discovered, because of the capacity and willingness of Defra civil servants to adhere to the policy of the Government, that there was an attempt at the highest levels in Defra to convert that agency to an executive agency of MAFF. The department wanted to keep control, even with all the problems we had in setting up the agency. Despite the report from Philip James and the manifesto commitments, they still thought at the last minute that they could keep it as an executive agency. It would have been the ultimate control, if you like, of having an executive agency compared to a non-ministerial department.
As a non-ministerial department, it was therefore part of government. I accepted that and had no problem with it. The coalition Government who came in during 2010 decided to have some machinery-of-government changes. Because the noble Lord, Lord Lansley, wanted to abolish us, the price of that was to remove certain issues from the FSA and take them back to health, so they are now dealt with behind closed doors and we have lost a few years in health.
The fact of the matter is that the OEP cannot be truly independent; think about the C&AG and the only Select Committee that I ever served on in 27 years in the other place, the Public Accounts Committee. I know the value of that and there is a degree of independence there, because of statutes that go back a long time. There was a massive cross-party willingness, including from St John-Stevas and Joel Barnett, as they were in those days, to get the legislation through when the NAO was set up and modernised out of what there was. That has worked incredibly well.
One noble Lord—it may have been the noble Lord, Lord Krebs—referred to Homes England. There is an issue there. We might look at what happened to Homes England, as it recently lost its CEO. Think about that.
I do not want to have a row with the noble Lord, Lord Cormack, but he cited two very poor examples: my noble friends Lady Amos and Lady Ashton. They both went to work for overseas bodies, one as an ambassador and the other as an ambassador within the EU. It is not the same as in this place. We have a Member of this House who has recently had a very high and important job inside the NHS but keeping the party whip and still voting on a daily basis.
The idea in Amendment 82 is to keep the OEP independent. Perception is pretty crucial and it would ensure that nobody in this place had a role. I am not saying that Amendment 82 is perfect but I can certainly live with it. Amendment 85 is excellent, of course.
I would prefer not to have any lectures from the Minister about the incumbents operating in the OEP. I have worked with those people in government. I know they are very good, so I need no lectures saying, “We have got so-and-so and therefore”, and so on. I know their quality, but that is for today and this year. As several people have said, we are legislating for the future so we have to make this legislation future-proof, and it is not at the moment.
I am sure there are some solutions. There are plenty of opportunities to have a discussion about how this could be seen as the perception of independence. We are otherwise going to end up with lots of court cases and have lots of lawyers—probably Members of this place—earning their corn by arguing that decisions have been made in a non-independent way. I can see it now, with court case after court case; why should we set ourselves up for that? There is an opportunity here, if we go back to first principles and think about what the job is. I could live with it going to the Climate Change Committee, by the way. That has been extremely successful and operated in a different way, because there was no such body previously. We have had enough warnings from the past.
Finally, I realise that this is probably one of the most difficult aspects of Brexit because we are trying to legislate for a function that we cannot possibly replicate: to fine the British Government. When we were in the EU and subject to infraction and court proceedings, this was different. There was a sanction on the Government made externally from the UK Parliament. We might have complained about it and did not like all the decisions—even as a Minister, I did not. But that was not the issue, as the sanction had been made by an independent, outside body. We cannot possibly replicate that exact situation here and now, as no body which we can set up could have the power to fine the Government. But we can set up a body that works independently from government, to ensure that the parts of government and the private sector do what they should. It can be done without financial penalties being necessary—there are other ways of doing it—but that power is not in the Bill. That is the point; the power is not there, and unless it is the Bill will fail.
My Lords, I am pleased to speak from these Benches in favour of the amendments in this group and to commend the noble Lord, Lord Cameron of Dillington, and the noble Baroness, Lady Boycott, for their excellent and powerful introduction of them. If I may paraphrase Oscar Wilde, I say to the Minister that for the Government to provoke the crossness of one Cross-Bencher is in itself careless, but to provoke the crossness of two is surely dangerous, particularly if those Cross-Benchers are as reasonable and thoughtful as the noble Lord and the noble Baroness. It is not just the Cross-Benchers who are cross; noble Lords have heard from across the House a rejection of the approach that the Government have taken.
One of the reasons for the crossness is that, as the noble Lord, Lord Krebs, and many others have said, we were promised a strong and independent office for environmental protection. The then Secretary for State for Defra, Michael Gove, said in a speech on 16 July 2019,
“we have to create … a new Office for Environmental Responsibility to hold government to account.”
He went on to say:
“There is obvious merit in their argument that any body which is designed to hold the Government to account is independent of ministerial interference.”
“An Act that combines … comprehensive objectives with strong enforcement powers”,
but the OEP currently has no such independence. It has no strong enforcement powers; its members will be appointed, and its budget set, by the Government. It will be subject to the guidance from the Secretary of State on enforcement—the Secretary of State who should be subject to that enforcement—and its effectiveness will be undermined by the constraints placed on judicial enforcement.
As the noble Lord, Lord Cameron of Dillington, said at Second Reading, the office for environmental protection
“has not only to be independent but to be seen to be independent. As currently set up, it is neither”.—[Official Report, 7/6/21; col. 1206.]
That is why the amendments in his name and that of the noble Baronesses, Lady Boycott, Lady Jones of Whitchurch and Lady Young of Old Scone, are so important. As we have heard, Amendment 82 puts it beyond doubt that the OEP would be accountable to Parliament, rather than to the very Minister and Government who may be subject to its enforcement powers. It would do so by making it clear that the CEO is to be the commissioner of environmental protection.
Amendment 85, in the names of the noble Baronesses, Lady Jones and Lady Young of Old Scone, seeks to provide a greater degree of scrutiny and independent involvement in appointments to the OEP through the Defra committee and the Environmental Audit Committee. I may have misunderstood, but I did not see a conflict between the amendment of the noble Lord, Lord Cameron, and that of the noble Baroness, Lady Jones, because my understanding is that hers relates specifically to non-executive members, whereas the noble Lord’s first amendment relates to the chief executive in the role of commissioner of environmental protection.
Amendment 91 would provide a means of securing financial independence for the OEP through a role for the Public Accounts Committee. We have heard how important that is. The noble Lord, Lord Cameron, cited the experience of the Environment Agency and how significantly its budget has been cut; as a result, its enforcement powers in many regards have disappeared.
Together, these amendments seek to tackle many of the deficiencies in the Bill as it stands and which, at the moment, fatally undermine the independence of the OEP. I hope the Government will consider them carefully, but I fear that, at the moment, they simply do not understand the concept of independence. In Committee in the other place, Leo Docherty, who was then the assistant Government Whip speaking for the Government, had this to say:
“The operational independence of the OEP … should not impede the”
ability of the
“Secretary of State in exercising appropriate scrutiny and oversight of the OEP.”
But it is the OEP that should be exercising scrutiny and accountability over the Minister, so that in itself undermines the case. He went on to say:
“Requiring the Secretary of State to actively protect the OEP’s independence at all times would be incompatible with … ministerial accountability”.—[Official Report, Commons, Environment Bill Committee, 5/11/20; col. 316.]
I hope the Minister can explain those two rather extraordinary statements. If that is the Government’s position then it is quite clear that there is no independence for this office at all.
The noble Lord, Lord Cameron, impressed upon us the need for bold action rather than settling for politics as the art of the possible. To me, politics is the art of making possible what seems impossible. If this seems impossible in Committee, I hope that, by the time we get to Report, it will seem not only eminently possible but absolutely necessary.
I ask the Minister to put aside his ministerial brief and endorse independence of mind both for himself and for the OEP, possibly by backing these amendments, or another form of them if they need to be improved, but certainly by backing the principles behind them and by supporting the arguments that have been made by noble Lords with such cogency and passion.
My Lords, we have had an excellent debate. I feel as if I have had a master class from some very experienced practitioners on how government really works and what it is like to be on the inside of some of these decisions.
I shall speak to Amendment 85 in my name. I am grateful to the noble Lord, Lord Cameron, for setting out so comprehensively the case for enhancing the status and autonomy of the CEO of the OEP. As the noble Lord, Lord Oates, has said, those of us who know the noble Lord, Lord Cameron, know it is very unusual for him to be a cross Cross-Bencher, and it is a sign that we should sit up and take notice when he shows so much passion about the issue.
This is the beginning of a debate about the OEP’s lack of true independence which we will have in different forms over the next few groups of amendments. It has been hugely informative to have had insight from previous Ministers and chairs of NDPBs, who know how Ministers’ powers are really exercised behind the public face.
Our amendment is simple but important. It would amend Schedule 1, which sets out the detailed appointment arrangements for the OEP. I very much welcome the support for the amendment from the noble Lord, Lord Krebs, the noble and learned Lord, Lord Hope, and other noble Lords. It would require the chair and other non-executive members of the OEP to be appointed by the Secretary of State only with the consent of the Environmental Audit Committee and the Environment, Food and Rural Affairs Committee of the House of Commons. That would prevent in years to come the Secretary of State having complete control over non-executive appointments to the OEP. As Schedule 1 stands, there is a worrying cascade of power from the top. The Secretary of State appoints the chair, and then the Secretary of State and the chair appoint the remainder of the non-executives. So in a future scenario, the Secretary of State would only have to appoint a compliant chair to exert undue influence over all the other appointments to the board.
Meanwhile, noble Lords will know that it is a regular occurrence for Select Committees to scrutinise and discuss appointments to other major arm’s-length bodies. Indeed, in response to the noble Baroness, Lady McIntosh, our amendment reflects the practices that I understood took place in the appointment of Dame Glenys Stacey, where the EFRA Committee and the Environmental Audit Committee carried out pre-appointment scrutiny of the preferred candidate. Sadly, that good practice, and that for other such appointments, has not been carried over into Schedule 1 of the Bill.
I am sure the Minister will say that our fears are unwarranted. He will of course point to the current appointments of Dame Glenys and her team as evidence that the Government can be trusted, and that therefore this measure does not need to be in the Bill. Of course we welcome those appointees, and have absolute faith that they will carry out a good job, but their appointments were made under a huge spotlight, when there was a clear necessity to send the right signals about the OEP’s independence of mind. Future appointments by a future Government may not be so publicly scrutinised, and the opportunity for an easier life may be all too tempting for a future Minister. I hope noble Lords will take our amendment seriously, and I hope the Minister will see the sense of it.
Meanwhile, the proposals from the noble Lord, Lord Cameron, go one step further. They would create a powerful commissioner with the powerful independent authority that the role demands, and we believe they would be an excellent solution. He beautifully illustrated what can go wrong when the Secretary of State has too much control over the OEP. As he and other noble Lords have said, we are legislating not for the present but for 50 or 60 years’ time. Both he and the noble Baroness, Lady Boycott, illustrated the potential farce of Defra fining itself; as the noble Earl, Lord Caithness, said, you cannot be judge and jury. Without guaranteed independence, the threat of political interference will always hang over the CEO and the organisation.
As noble Lords have said, it is not just about being independent but about being seen to be independent. That is the only way in which the OEP’s decisions will be trusted and respected, however controversial they might seem at the time. If it is going to do its job properly, there will always be times when it incurs the displeasure, frustration and even anger of Ministers and the Government. Defending the environment, our natural landscapes and our biodiversity is always going to be a huge responsibility that will, on occasion, require courage to make the right decisions. As the noble Lord, Lord Cormack, says, we require a vigorous, courageous person to stand up to the Government in those circumstances.
The OEP needs to be protected from the consequences of strong leadership and strong actions, otherwise it will be all too easy for the organisation to be sidelined, ignored, starved of funds or even shut down. I am sure the Minister will seek to reassure us that that would not happen on his watch, but, as we have said, we are making legislation for the long term, when future Governments might have different priorities. We have only to look at what happened to the Electoral Commission, which had the temerity to fine Vote Leave for overspending in the Brexit referendum and is now threatened with curbs on its power to take