Wednesday 30th June 2021
(3 years, 4 months ago)
Lords ChamberEnvironment Act 2021 View all Environment Act 2021 Debates Read Hansard Text Amendment Paper: HL Bill 16-V Fifth marshalled list for Committee - (30 Jun 2021)
Lord Khan of Burnley (Lab)
My Lords, it is a pleasure to follow the noble Lord, Lord Teverson. I shall speak to Amendments 103 and 114 in the name of the noble Baroness, Lady Parminter, and Amendment 109 in the name of the noble Baroness, Lady Jones of Moulsecoomb—whose final reply in the earlier debate on Monday was very candid.
In normal times, one would hope that something like Amendment 103 would not be needed. As the noble Lord, Lord Teverson, and my noble friend Lord Rooker said, it should be accepted; it is a given. The ability of experts to advise Ministers should be central to how government functions each and every day. However, it seems that expert advice does not carry the same weight with certain Ministers as it once did. Amendment 103 is therefore most welcome.
While the OEP will have a specific remit given to it by the Bill, it appears entirely reasonable that it should also act as a general champion for the natural environment. Amendment 103 would clarify that the OEP is empowered also to give advice to Ministers on other natural environment matters. The amendment would broaden the reach of Clause 29(3) by increasing the discretion afforded to the OEP on how it exercises its advisory powers and enable it to advise Ministers on a fuller ranger of matters, improving the evidence-gathering and assessment process on important policy decisions. When the body was first announced, we were told that it would be given licence to engage with and freely challenge Ministers. The amendment would be one means of giving statutory backing to that commitment.
Amendment 109 returns to an issue that has been discussed at length. As the noble Baroness, Lady Jones, made clear, it is about accountability and transparency. The issue was discussed at length during debates on EU exit statutory instruments under the European Union (Withdrawal) Act 2018, where references to the European Commission in domestic law and retained EU law were to be replaced by supposedly suitable domestic alternatives. However, in some cases, this has left Secretaries of State reporting to themselves or to bodies over which they have responsibility or, in some cases, not having to report at all. We reluctantly accepted this as a short-term logistical fix, in part because assurances were given that as domestic bodies were established, they would begin to take on some responsibilities previously held by the Commission. Given the challenges to retained EU law, we are not certain that this amendment would function exactly as hoped, although it enables the Minister to clarify how Defra plans to meet its previous commitments and whether it has any plans to allow the OEP to undertake the kind of review envisaged in subsection (2) of the proposed new clause.
Finally, Amendment 114 would remove the “Excluded matters” list in Clause 45 to ensure that the term “environmental law” has the broadest possible application.
We strongly welcome the tabling of this amendment. I am grateful to the noble Baroness, Lady Parminter, whom we wish well, as she has been “pinged” today. We appreciate the case she made at the beginning of this debate.
The Minister of State, Department for the Environment, Food and Rural Affairs and Foreign, Commonwealth and Development Office (Lord Goldsmith of Richmond Park) (Con)
I thank noble Lords for their contributions. Before I start, I would like to wish my noble friend a very happy birthday and thank her for spending it with me on these Benches. That is very kind.
I thank the noble Baroness, Lady Parminter, for tabling Amendment 103 and for her compelling speech on Monday. I appreciate the amendment’s intention. The concern is that it could be duplicative, and I would like to direct her to Clause 19, which already places requirements on the OEP to give advice, on request, to Ministers on any matter relating to the natural environment and, on request or on its own initiative, on any proposed changes to environmental law. It builds on Clause 28(2), which gives the OEP the power to report on
“any matter concerned with the implementation of environmental law.”
It is in these areas that the OEP will have the greatest expertise, and that its advisory and reporting roles should be focused. To be clear, this will include planning legislation where it relates to the environment, including environmental impact assessments, strategic environmental assessments and all the measures in the Bill relating to planning. Other bodies, such as Natural England and others, have functions to advise government on matters concerning the natural environment. Amendment 34 would risk duplicating this and directing the OEP away from its core functions.
Turning to Amendment 114, also tabled by the noble Baroness, Lady Parminter, Clause 45 is vital in defining and establishing the OEP’s remit, and each of these exemptions serves important purposes. Clause 45(2)(a) excludes the
“disclosure of or access to information”
from the OEP’s remit in order to avoid overlap with the remit of the Information Commissioner’s Office. The exclusion of legislative provisions concerning the Armed Forces and national security is important to the protection of the country. Such legislation would concern highly sensitive matters and it is therefore appropriate to restrict the OEP’s oversight and access to information in such areas.
However, public authorities such as the MoD would not be exempt from scrutiny by the OEP in respect of their implementation of environmental law, including in respect of SSSIs and the MoD’s statutory duties in the Countryside and Rights of Way Act. It is clear to us—this is a point made by a number of noble Lords—that the MoD, as one of the country’s biggest landowners, has a direct impact on the natural environment. We will need to be absolutely confident that the exemptions do not in any way loosen the MoD’s responsibilities for managing those natural assets.
Turning to Clause 45(2)(c), legislation regarding
“taxation, spending or the allocation of resources”
is developed by HMT and needs to be developed with the flexibility to meet the nation’s revenue requirements. However, the spending of government resources may well be a relevant consideration in the OEP’s review of the implementation of environmental law, and it may refer to this in its scrutiny and advice reports to government. Additionally, legislation relating to regulatory schemes such as the plastic bag levy is not part of the exclusion and is within the OEP’s remit.
Turning to Amendment 109, following EU exit, Defra’s secondary legislation programme ensured that reporting requirements in EU legislation were generally converted into a requirement to publish environmental information online, meaning that information about the environment will be publicly available.
Additionally, when we left the EU our domestic legislation was updated to meet domestic rather than EU objectives. For example, where EU law required the UK to report to the European Commission on pesticides residue monitoring, our domestic legislation now provides for an equivalent national report to be published online and, therefore, to be made public.
I should add that if the Government wished to seek the OEP’s advice on matters relating to environmental law, including on reporting arrangements, it could do so under provisions made in Clause 29.
I hope that this goes some way to reassuring noble Lords that the amendment is therefore not needed. It could serve to blur the lines or even distract the OEP from the core functions it will be required to undertake. I ask therefore that the amendment be withdrawn.
Baroness Parminter (LD) [V]
My Lords, I thank the Minister for his remarks and all those who have spoken in this short debate for their universal support for my Amendments 103 and 114.
I listened carefully to the Minister but I have to say that I still do not think he has quite answered the question raised by Amendment 103. He said that the OEP can give advice on matters such as planning—if it is asked. The point behind my amendment is that, as it stands, the OEP cannot give advice on those matters if it is not asked.
When we were debating this amendment late on Monday, I did not make the point—I will make it now—that Environmental Standards Scotland can make recommendations to any other body on matters relevant to its function. It can go right across the piece but, importantly, the OEP cannot, so its powers are narrower than those currently given to the parallel Scottish body. I agree with the noble Lord, Lord Rooker, that this is an indication of Defra’s controlling nature, and I am afraid that I am not satisfied by what the Minister has said. Nor is he prepared to accept the broad thrust of my argument as set out in Amendment 114: the massive carve-out in terms of disclosure of information on the MoD’s spending.
The Minister has not responded satisfactorily to the concerns raised by Members here today or to those raised in the linked amendment, 78, which we also discussed on Monday and to which the noble Baroness, Lady Bennett of Manor Castle, referred. I beg leave to withdraw the amendment, but we will be returning to this issue on Report.
Lord Goldsmith of Richmond Park (Con)
I thank noble Lords for their contributions and assure them that the Government are committed to establishing the OEP to effectively hold public authorities to account, and have provided for an enforcement framework which will allow it to do so in a manner appropriate to our domestic context.
I shall begin with Amendments 104 and 107A, tabled respectively by the noble Baroness, Lady Jones of Moulsecoomb, and my noble friend Lady McIntosh of Pickering. In our domestic legal system, provision for a system of fines is unnecessary because of the strict requirement for public authorities to comply with court judgments and the stronger legal remedies available. I will come back to this in a moment. Fines play an important role at the EU level, as the noble Lord, Lord Anderson, explained, because the Court of Justice of the European Union has no other tool by which to bring about compliance with its judgments. Unlike our courts, it does not have the ability to impose mandatory court orders directly on public authorities. If a member state does not comply, the Commission can only bring the case back to court some years later and seek a financial penalty against the member state.
Incidentally, financial penalties under the EU framework were pushed as a compliance mechanism by the UK Government when the UK was a member of the EU. Given the nature of the European framework, we felt that it was necessary at the time to ensure that no member state could simply ignore the judgments of the Court of Justice of the European Union.
By contrast, under our proposed framework, if a public authority took the extraordinary step of failing to comply with the stronger remedy of a binding court order, the OEP would be able to bring contempt of court proceedings. Being held in contempt would have serious implications and could not be ignored, as noble Lords know. There are clear requirements in the Ministerial Code for Ministers to comply with the law, including court orders. I emphasise this point. Having heard my noble friend Lord Cormack, I think that this may be an area that he has perhaps not fully understood. The prospect of a fine pales in comparison with the risk of being held in contempt of court.
I also note that the amendments would go further even than allowing the court to impose a fine where an earlier judgment had not been complied with. One amendment would grant a power to the OEP itself to impose fines, and the other would grant the court a power to issue fines, effectively as a punitive step. The Government consider that both of these options would be inappropriate. Amendment 104 would in effect allow the OEP to superimpose its own decisions in place of those made by authorities appointed by Parliament itself. The OEP would be able to prematurely sanction public authorities, without reference to the courts, and with no appeals mechanism through which this decision could then be challenged.
Incidentally, the European Commission cannot directly fine member states, public bodies, or private bodies for environmental infractions, as a number of noble Lords have implied. Only the Court of Justice of the European Union has this power, and only if a member state has failed to comply with an earlier judgment.
Additionally, Amendment 107A would grant the court a power to issue fines, effectively as a punitive step rather than to bring about compliance. This is not the role of environmental review or the OEP.
Turning to the amendments tabled by the noble Lord, Lord Anderson of Ipswich, I thank him for his conversations on this subject with myself and my officials. In answer to the noble Baroness, Lady Jones, I would be very keen to continue those discussions if he is willing, as I hope noble Lords will appreciate I have been throughout this process. Before I go into the specifics of his amendments, I will explain why we have designed the OEP’s enforcement framework in the way that we have, and why it is so important.
The OEP’s enforcement framework must be considered in the round. It delivers numerous benefits as an additional—not a replacement—route through which alleged instances of non-compliance will be addressed. Our proposals increase access to justice by allowing anyone who has been affected by, or is aware of, an alleged breach of environmental law by a public authority to make a complaint to the OEP free of charge. Notwithstanding the comments by the noble Baroness, Lady Jones, this matters, given the costs of action outside of this proposal and outside of this new system.
By liaising directly with public authorities to investigate and resolve alleged serious breaches of environmental law in a targeted manner, the OEP will be able to drive systemic environmental improvements. Wherever possible, this will be without the need to resort to costly and time-consuming litigation. In many ways, therefore, the OEP will be fulfilling a similar role to that carried out by the European Commission in the EU infractions process, but with a significantly wider remit and the ability to act directly against public authorities.
The vast majority of EU infraction cases are resolved in a similar way to how we expect the OEP’s enforcement framework to operate: through dialogue, not in front of the Court of Justice of the European Union. The cases taken by the EU Commission are also intended to drive systemic environmental improvements by clarifying the law and dealing with ongoing failures, and this is the role that we have in mind for the OEP. Our new framework will lead to better outcomes for complainants, the public and the environment. It is right that as many cases as possible are resolved through this route.
There has been a great deal of discussion of Clause 37(8) in this debate, but it must also be right that we have adopted an approach which ensures fairness and certainty in these provisions. This is entirely consistent with other forms of legal challenge in our domestic justice system, where, for instance, provision for strict judicial review time limits demonstrates that relying on judicial discretion alone is not sufficient.
Turning to the detail of Amendment 105, the court should be asked to examine issues only where the OEP has given the public authority adequate opportunity to respond. That is only right and appropriate. Active discussion with a view to resolving the issue would take place in the course of an investigation and through the service of an information notice. Where necessary, this would then be followed by a decision notice. Amendment 105 from the noble Lord, Lord Anderson, would therefore circumvent this process, limiting the benefits that this new system could deliver. Noble Lords will note that it would still be possible for the OEP to put evidence to the court regarding actions by a public authority related to conduct described in a decision notice. The court would then have the flexibility to consider this in relation to remedies.
Turning to Amendment 106, the OEP’s enforcement framework will drive systemic environmental improvements and deliver better outcomes for the public and the environment. It will allow the OEP the time and space to resolve issues directly with public authorities through investigations and its notice processes. Litigation will, of course, sometimes be necessary, but as a last resort rather than as the default or the norm. This is entirely consistent with the approach taken in EU environmental infractions, which is focused on addressing ongoing non-compliance, not trying to overturn decisions years later that have been reasonably relied on by individuals. It is as a direct result of this extended enforcement process that some safeguards are required to avoid the negative effects of decisions being undone potentially many months after they have been taken. Clause 37(7) does this.
However, a statement of non-compliance is none the less an important means by which the court can clarify the law for future cases. Given that the court will have ruled on the correct interpretation of the law, this will ensure that public authorities avoid future breaches and will prevent any ongoing non-compliance, which is ultimately the aim of the OEP. The EU infractions process is also exactly that: it seeks to address ongoing non-compliance, rather than undo specific local decisions made years previously. We want the OEP to be a forward-looking organisation, driving better environmental outcomes for the future.
In response to comments made by the noble Baroness, Lady Jones, and others, I want also to reassure noble Lords that the existence of the statement of non-compliance does not in any way limit the granting of remedies by the court. A statement of non-compliance is not itself considered a remedy. Subject to the important protections in Clause 37(8), the court will have full discretion to grant normal judicial review remedies. This includes quashing orders, prohibiting orders, mandatory orders and declarations.
I hope that the noble Lord, Lord Anderson, is reassured that we have carefully considered how best to balance this provision to ensure that the OEP and environmental review will be able to drive meaningful environmental improvements, while also ensuring that there is not an open-ended ability to overturn decisions potentially years after they are made. As such, we do not believe that this amendment is necessary.
Turning to Amendment 107, environmental review by its nature allows time for information and decision notice stages. This will enable the court to make orders outside of the normal judicial review time limits. Judicial review time limits are to ensure certainty and provide a fair process that protects the rights of third parties who act reasonably on the decisions of public authorities. These very strict time limits are set out in the Civil Procedure Rules at Part 54. Rule 54.5 specifically provides that these time limits may not be extended, even by agreement between the parties. If judicial discretion alone were sufficient to protect fairness and ensure certainty, why, then, would these time limits be necessary?
The Government consider it entirely necessary to recognise the unique context in which environmental reviews will occur and protect third parties in this way, just as others did in the past when establishing the judicial review procedure in law. It is not a novel approach to protect such rights in legislation. Indeed, this provision is an extension of the position for existing challenges: under Section 31(6) of the Senior Courts Act 1981 and Sections 16(4) and (5) of the Tribunals, Courts and Enforcement Act 2007, the court has a discretion to refuse relief in such circumstances.
The protections in Clause 37(8) make it possible for the OEP to have a more collaborative, but potentially extended, process of investigation and notices, which will enable issues to be resolved more effectively in the interests of the public and the environment. But to be clear, it is also not the case that these safeguards will be triggered in all cases. Indeed, the Bill steers the OEP to prioritise cases with national implications, so individual local planning decisions affecting third parties are unlikely to be considered. The safeguards provided by Clause 37(8) will not be relevant to most cases that the OEP will pursue. A requirement to change future policy or how legislation is to be interpreted will not trigger the safeguard. After all, no-one is entitled to demand that government policy be fixed for ever more.
Lord Berkeley (Lab)
My Lords, I have listened very carefully to this debate, particularly to the many noble and learned Lords who gave very powerful arguments in support of the amendments we have been discussing. I certainly believe that they have made some very strong cases. I was particularly interested in the comment from the noble and learned Lord, Lord Mackay, about the two levels of law, environmental and other ones. That is pretty fundamental. We have had a lot of discussion about penalties, enforcement, fines and the relationship with the ECJ, and whether fines are important or whether reputational damage is perhaps worse. There is also judicial review, which I will not go into now.
I am sad that it appears that the Minister has rejected all the arguments in these amendments. If they get through in Report, they will make a much better Bill than we have at the moment. I was really impressed with the suggestion from the noble Lord, Lord Cormack, that there needs to be much more round-table discussion on this before the next phase. If not, I foresee big problems on Report. The most important thing is that the House and Members from all sides achieve something that we can all be proud of. From listening today, I certainly am not proud of it at the moment, but I hope that the Minister will reflect on this and organise something before the next stage.
Lord Goldsmith of Richmond Park (Con)
I thank the noble Lord for his comments. It is absolutely not the case that I or the Government have rejected all the arguments put forward today, or indeed in any of the debates we have had. This is a lengthy process of scrutiny, discussion and debate and, as I have said many times, it is unlikely that a Bill that begins this process will end it in exactly the same form. I am as keen as anyone in this Committee—probably keener than most people in this Committee—to ensure that the Bill is as good and strong as it possibly can be. That is why I am very keen to continue discussions with the noble Lord, Lord Anderson, and many other noble Lords on their areas of expertise.
The environmental review is a bespoke and additional jurisdiction, not a replacement vehicle. This is additional—for the court to hear claims outside the usual time limit for judicial review or statutory review. As I said during my speech, the court retains all available remedies where decisions are challenged by way of judicial review within the existing time limits, including, where appropriate, by the OEP. I hope that addresses the noble Lord’s concern.
Baroness McIntosh of Pickering (Con)
Given the strength of feeling in the Committee this afternoon, I hope my noble friend might agree to meet the authors of the amendments before us. I come back to the point that many have referred to from my noble and learned friend Lord Mackay of Clashfern. We are left with the impression that an environmental law is set out before us in the Bill but that a breach of that environmental law does not amount to a breach of the law. That is unsatisfactory.
I also press my noble friend on his comment that rather than have a fine, which would be punitive, it is better to have a compliance effect such as holding the company—it could be a chemical company or a water company—to be in breach through the OEP applying for contempt of court. I am just trying to think how long those proceedings would take after the horse has bolted and the stable door is left open for the damage to carry on. I would still prefer the options in either Amendment 104 or, ideally, Amendment 107A of leaving financial penalties on the table.
Lord Goldsmith of Richmond Park (Con)
I thank my noble friend for her comments. I hope I addressed fines and why the prospect of being held in contempt of court is a far greater concern for a Minister than the prospect of the department that Minister belongs to being fined by a Government and the money being recycled through the same Government.
I reiterate that the system we are replacing is not one that can fine those chemical companies or even local authorities—it can deal only directly with member states—so the remit here is far greater than the remit of the system being replaced. I understand that we may have to agree to disagree, but I refer my noble friend to my argument in relation to fines earlier in the discussion.
On her first point, I am of course very happy to have meetings with any number of noble Lords to discuss these issues, as I have throughout this process.
Baroness Jones of Moulsecoomb (GP)
My Lords, I thank the Minister for his comments, especially about continuing dialogue and revisiting this; that is incredibly important. I thank all noble Lords who have contributed. It is obvious that we all think there are problems with the Bill. I hope that not just the Minister is listening but the Government, and that they understand the depth of concern we are expressing here.
The noble Lord, Lord Khan, called my previous summing-up speech “candid”. At first I thought that was a compliment, but then I thought that it actually sounds like something out of “Yes Minister”, when the civil servant says: “Yes, very brave, Minister—very candid.” I hope I am candid, but at the same time I try not to be rude—I do not always succeed.
I welcome the support of the noble Lord, Lord Anderson, however tentative, and thank him for his examples. Quite honestly, I wish I had asked him to present my Amendment 104. I think he would have made a superb job of it, and I look forward to him using his teeth on Report. Quite honestly, if it comes to a challenge between the Government and the noble Lord, Lord Anderson, my money is on him. He has my full backing.
The noble Baroness, Lady McIntosh of Pickering—I sympathise with her visit to the dentist and hope she is feeling better—is right to say that our amendments take things forward. I will be keen to push this on Report.
The noble and learned Lord, Lord Thomas of Cwmgiedd, used an extremely good phrase about working for future generations that I wish I had used. That is absolutely crucial when we are dealing with this Bill. It is not just for now, the next six months or the next few years but for future generations. He was also quite generous when he said that the Government believe in the rule of law. I have huge respect for the noble and learned Lord, but I am not sure that is true. I think the Government talk about the rule of law but do not actually observe it; that is my observation of how they behave. We must trust the judges, as he says.
The noble Lord, Lord Krebs, for whom I have huge respect, said that the office for environmental protection has to wield a big stick. That is absolutely right; it has to have the authority and the power to achieve all sorts of things. He also felt that Amendments 104 and 107A were a step too far, but I do not see why that is a valid argument. Quite honestly, giving up money hurts, and somehow we have to make it punitive.
The noble Earl, Lord Caithness, said that the OEP has to be independent and authoritative; that is absolutely right. He also said that financial penalties can be effective but then suggested that, because the money was recycled, perhaps it was not that effective. Again, I disagree. It is not only the pain of the penalty but a visible example of the fact that the Government are wrong.
I thank the noble and learned Lord, Lord Hope of Craighead, for his support. He emphasised the value of case law—something that was used a lot when we were in the EU—where the Government are really held to account.
The lay woman’s view from the noble Baroness, Lady Young, is extremely valid and very cogent. I thank her for her support.
The right reverend Prelate the Bishop of Gloucester talked about leadership and COP 26. The fact is that we need an Environment Bill that will look good on the statute books when we get to COP 26, or our Government will be seriously embarrassed. The fact that the OEP will have fewer resources than the preceding body is a matter of huge concern. She also said that the window for action was closing, which is absolutely true, not just of this Bill but of all our actions on the climate emergency. At the moment we are seeing endless examples of very unusual weather patterns, whether in Canada or over much of Africa. We have to understand that we have to act urgently.
The noble and learned Lord, Lord Mackay of Clashfern, pointed out the illogicality of the Bill—I really enjoyed that—and the fact that environmental law is seen as a grade below other law. That is absolutely true. I think Defra has much lower status than other parts of the Government, and that is a terrible shame. It should be involved in absolutely every part of government.
I was delighted to hear the noble Lord, Lord Cormack, with his customary common sense, support the polluter pays rule. Of course polluters have to pay and the Bill has to stand the test of time. He said that it is “riddled with absurdity”. I wish I had said all this; it is much tougher than what I said.
The noble Lord, Lord Duncan of Springbank, freed from the shackles of collective responsibility of his ministerial post, has joined our forces—I welcome him—and spoke strongly about the need to give real teeth to the new system of environmental protection. I thank the noble Baroness, Lady Parminter, for her support of Amendment 104. She made the very valid point that the Scottish body is more powerful. Why would we do less than our Scottish cousins? The idea that the Government are using the term “world-beating” alongside the words “office for environmental protection” here in England is ridiculous.
Baroness Jones of Whitchurch (Lab)
My Lords, I hope to speak quite briefly on this issue. I am grateful to my noble friend Lord Rooker for spelling out the case so thoroughly and for raising the important question of transparency. He has rightly underlined the importance of open government and of the OEP being seen to act in the public interest. That is particularly true on environmental matters, where in the past there has been a tendency to cover up environmental damage and pollution, and those accused have deliberately drawn out proceedings to delay prosecution.
As it stands, the Bill contains two prohibitions on disclosure of information. The first appears to override the existing right of access to information under the environmental information regulations. The second appears to contravene the Aarhus convention, the international treaty that underpins the EIR.
Under the Bill, the OEP has a clear obligation to monitor progress in environmental protection and investigate complaints of serious failure by public bodies, but it seems that the OEP could not disclose information obtained for these purposes unless the supplier of the information consented. Similarly, information obtained during the OEP’s enforcement activity would be kept secret until the OEP decided to take no further action. That appears to be much more of a blanket ban than the current provision of the EIR, which limits disclosure only if it would
“adversely affect the course of justice”.
The Explanatory Notes take a different view, claiming that Clause 42 is compliant with the Aarhus convention, but it creates a caveat based on a “confidentiality of proceedings” exception. It is not clear how that will be defined.
To avoid any confusion on the important issue of public access to information, and to protect the OEP from accusations of unnecessary secrecy, it makes sense to clarify in the Bill that the Environmental Information Regulations 2004 and connected freedom of information Acts take precedence. We therefore welcome the amendments in the name of my noble friend Lord Wills that have been ably moved by my noble friend Lord Rooker. I hope the Minister will see the sense in these amendments, which would provide useful clarification of our obligations under national and international law.
Lord Goldsmith of Richmond Park (Con)
I thank the noble Lord, Lord Rooker, for his introduction. He is right to emphasise the importance of transparency, a point made equally well by my noble friend Lord Lucas and the noble Baroness, Lady Jones.
I reiterate the position on information disclosure for the OEP. The Government have been clear that the environmental information regulations and the Freedom of Information Act will apply to information held by the OEP and public authorities. The Bill does not in any sense override that legislation. The OEP would have to consider any request against the relevant legislation on a case-by-case basis.
The OEP will assess whether any exemption or exception to the relevant regime applies to the information. If so, it will consider whether a public interest weighing exercise is required under that exemption. If a public interest test is required, it will carry out a balancing exercise before deciding whether the public interest requires that the information should be disclosed or withheld.
Turning to Amendments 108A to 108D, tabled by the noble Lord, Lord Wills, although I agree that it is important that the OEP operates transparently, it must be allowed the discretion necessary to operate effectively. The OEP’s enforcement framework has been designed to resolve issues as effectively and efficiently as possible. To do so, it is important to have a safe space where public authorities can confidently share information and allow the OEP to explore potential pragmatic solutions before issuing formal notices. The noble Lord’s proposals would effectively remove that forum, meaning that public authorities might prefer to advance to more formal stages where information disclosure exemptions may apply due to confidentiality of proceedings. That would undermine the framework and result in slower resolution and poorer value from public funds.
On Amendment 114A, Clause 45(2)(a) excludes the disclosure of or access to information from the OEP’s remit. These matters are explicitly excluded in order to avoid overlap between the remit of the OEP and that of the Information Commissioner’s Office. This is further clarified in paragraph 383 of the Bill’s Explanatory Notes. The existing drafting of this provision allows greater flexibility to ensure that overlaps are avoided. Not only does it allow the OEP and courts to decide on the meaning of the exemption to the OEP’s remit on a case-by-case basis; it accounts for any future changes to relevant legislation that may cause overlap between the two bodies. The Information Commissioner’s Office will still have the remit to uphold information rights in the public interest, promoting openness by public bodies and data privacy for individuals.
I hope that answers the noble Lord’s questions and I ask that he withdraw his amendment.
Lord Rooker (Lab) [V]
My Lords, the Minister has spent just three minutes on this crucial part of the Bill. I will not try to respond now; I will take advice on what he said, but we will no doubt come back to this issue on Report. I beg leave to withdraw the amendment.
Baroness Hayman of Ullock (Lab)
I thank noble Lords for their contributions to the debate. It has clearly demonstrated the strength of feeling about the need to improve Clause 43 to resolve the omissions in the definition of the natural environment, which we have all been looking at. In many ways, the noble Baroness, Lady Bennett of Manor Castle, summed it up when she said that we need to decide what we are trying to save, what we are trying to protect and what we are trying to improve. She gave a very moving example of why this really matters.
When the noble Earl, Lord Caithness, introduced his amendment he talked about the glaring hole in the Bill. I think everyone would agree with him, and with the amendment from the noble Lord, Lord Randall of Uxbridge. Both amendments talk about the need to include soil in the definition of “natural environment”. Headlines have warned us that the state of our soil is now a serious threat to the environment and to our ability to grow crops, but we also know that good-quality soil can help to save the planet. The noble Lord, Lord Teverson, just mentioned Michael Gove, who, when he was Defra Secretary of State back in 2017, said that
“no country can withstand the loss of its soil and fertility.”
He was correct.
The noble Lord, Lord Randall of Uxbridge, talked about the huge importance of the health of our soil, and how it is critical for our biodiversity and the future of our agriculture, because we fundamentally rely on it. Soil produces 95% of our food, be it the crops we eat or the grasses and other plants that feed our animals. It also stores an extraordinary amount of carbon —three times the amount in the atmosphere and twice the amount in trees and forests. Although soil can store—or sequester—carbon, we also know that it can lose it when it is degraded. The loss of carbon in poor soils contributes to the rise of carbon dioxide in the atmosphere, which we know is one of the main causes of climate change.
It has been estimated that there could be 50,000 species of microorganism in just 1 gram of soil. Crucially, this rich “soil web” of underground life creates an open structure. It allows rainwater to seep into the ground, storing moisture for plants and crops to grow well, even in times of drought. It also prevents flooding, which is an important function of global warming. Further extreme and uncertain rainfall is becoming more prevalent in the UK. As someone who lives in Cumbria, I am all too well aware of this.
The noble Earl, Lord Caithness, talked about the amount of topsoil we lose every year—3 million tonnes. He rightly said that we simply cannot afford to continue in the way we are. He also made the important point, as did other noble Lords, that the Environment Bill and the Agriculture Act need to work together to get the outcomes we need.
As we have heard, the Environment Bill currently lists land, air and water, and the natural systems, cycles and processes through which they interact, but there is no specific mention of soil. We on this side of the Committee believe that this is an important omission, so we support the amendments in the names of the noble Earl, Lord Caithness, and the noble Lord, Lord Randall of Uxbridge, to specifically include soil in the Bill.
We have also been debating the extent to which the marine environment is provided for in the Bill and how it is not clear enough. The marine environment must be seen as an integral part of the process of environmental conservation. Our legislation includes substantial activity to enable environmental protection and conservation to take place in these zones, but, as other noble Lords have said, this is not always effective enough. So, in addition to the need for the marine environment to be included in the Bill’s scope, Clause 43 needs to be amended to make it explicit that the “natural environment” includes the marine environment.
Amendment 113 in the name of the noble Baroness, Lady McIntosh of Pickering, would expand this definition. I thank the noble Baroness for her clear explanation of why the amendment is needed. The contribution from the noble Baroness, Lady Boycott, was also very powerful as to why we need to look after our marine environment. The Explanatory Notes indicate that the definition extends to the marine environment, as well as to terrestrial and water environments, but although Explanatory Notes are often helpful for providing information as to intention, they add nothing whatever to, or take nothing away from, the actual legislation in front of us. For legal clarity, we believe that this should be stated in the Bill. For this reason, we support Amendment 113.
My noble friend Lord Berkeley talked about why biodiversity gains should also include water. The links between the water sector and biodiversity involve the impacts of the sector on biodiversity and the benefits the sector can receive from the ecosystem services—I say to the noble Lord, Lord Teverson, that I have now said “ecosystem services”—provided by biodiversity. The water sector really should have a direct interest in safeguarding biodiversity both for its own use and for that of others. Well-functioning ecosystems—forests, grasslands, soils, rivers, lakes, streams, wetlands, aquifers; I could go on—all influence the availability of water and its quality. They are also vital to meet water management goals such as water storage and flow regulation, filtering, and flood and drought protection, among others.
I am sure that the Minister has heard the strong support for the amendments, particularly for the inclusion of soil, although the marine environment is just as important. I look forward to hearing from him.
Lord Goldsmith of Richmond Park (Con)
I thank all noble Lords for their contributions to this important debate. This first definition of the natural environment is deliberately broad, and includes both the living, such as plants and wild animals, and non-living, such as land, air and water, elements of the environment. To be comprehensive, it also includes the natural systems, cycles and processes through which the elements of the natural environment interact. The difficulty is that if we were to add to the Bill matters already covered by the definition it would cast into doubt anything not specifically included. However, I hope that I can provide reassurance on all the points raised by noble Lords.
I agree with the intent behind Amendments 113A, 113C to 113E, 194AB and 194AC from the noble Lord, Lord Berkeley. Clearly, our environmental governance framework must protect the ecosystems that make up our natural environment. Clause 43 makes it clear that the systems, cycles and processes through which the elements listed in paragraphs (a) to (c) interact are a fundamental part of the natural environment. This definition therefore already includes ecosystems, as referenced in the Explanatory Notes at paragraph 371, page 59. Regarding Amendments 113C to 113E, as the Bill’s definition of environmental protection refers back to the definition of the natural environment, it is also not necessary to specifically mention ecosystems in Clause 44.
Regarding Amendments 110 and 112 from my noble friends Lord Caithness and Lord Randall respectively, the Government of course recognise the fundamental importance of healthy soils to a thriving natural environment. Both my noble friends made powerful cases. It may not be the most glamorous of environmental subjects, but it is impossible to exaggerate the importance of soil. I was struck by the teaspoon factory analogy from the noble Baroness, Lady Boycott, which I have no doubt will stick with me.
I will make a couple of points. Outside of the Bill, a number of big levers are being introduced that will have a direct bearing on the health of our soil. A number of noble Lords mentioned the environmental land management system—a shift away from, in effect, subsidising the conversion of land to farmable land, no matter the value of that land beforehand, to a system where all payments are conditional on the delivery of public goods, such as restoration of the soil and good management generally of ecosystems.
In addition, our tree action plan is backed up by the £640 million Nature for Climate fund, a major part of which will be encouraging landowners, through very generous incentives, to either plant up or naturally regenerate land either side of England’s waterways, with a view to boosting the biodiversity value of these already biodiverse and valuable places, but also to slowing water and cleaning the water that eventually makes it into our waterways in numerous different magical ways. In addition, we have our peatland plan, which we will debate at another point.
My noble friend Lord Caithness asked me to answer his question about the research being conducted by Defra into soil reconstruction. Although I cannot give him a detailed answer now—I will ask my colleague, Rebecca Pow, to write to him with a proper answer—I can say that today we are publishing details of the first options under the sustainable farming incentive, which will be open to farmers eligible for the basic payment scheme. We have decided to start with soil health since, as so many noble Lords said, that is where everything connected with successful farming begins.
Regarding the Environmental Audit Committee report—I apologise, I cannot remember which noble Lord mentioned it—we are developing a healthy soils indicator, a soil structure monitoring method and a soil health monitoring scheme to help land managers and farmers track the health of our soils over time and the impact of some of the policies I just mentioned.
Baroness Jones of Whitchurch (Lab)
My Lords, I am grateful to the noble Baroness, Lady McIntosh, for allowing us to have this brief debate. She has rightly raised the fact that the OEP should have some continuing role in monitoring and factoring in our obligations under international environmental law. These obligations, including Aarhus, still exist despite us leaving the EU—and these are not technical questions, as the noble Baroness, Lady Bennett, as just illustrated so vividly. If the Government are not minded to accept this amendment, it would be helpful if they could spell out how the role of the OEP and its enforcement functions with regard to our international obligations will appear in the Bill. I therefore look forward to the Minister’s response.
However, since I have the floor, I briefly echo the concerns of the noble Earl, Lord Caithness, about all the business on the Bill ending up at Report. I just say very kindly to the Minister that, in the past, it has been a much more iterative process. It is really not very helpful that the Minister seems to be giving us a blanket no to all the amendments we are debating. Normally, there is a little more give and take. Everyone has their own way of doing things, and he must develop his own style, but I fear that he is storing up more problems than is necessary at Report if he does not take the Chamber with him. This might just be a matter of tone, but I give him just a little helpful advice about how we might proceed.
Lord Goldsmith of Richmond Park (Con)
I thank my noble friend Lady McIntosh of Pickering for Amendment 113F and reassure noble Lords that the Government are fully committed to the important aims of the Aarhus convention and fulfilling our obligations under this agreement.
The definition of environmental law in the Environment Bill has been designed with the primary purpose of defining the scope of the OEP. The OEP’s remit is to oversee the implementation of domestic legislation, rather than international law. Separate mechanisms exist to regulate compliance with international agreements.
Where the OEP determines a complaint to be outside its scope and considers that the complaint is regarding a failure to comply with the convention, the OEP would be expected to advise the complainant to approach the Aarhus convention compliance committee. This committee considers complaints related to obligations under the Aarhus convention, which is international law, and submits recommendations to the full meeting of the parties.
I assure my noble friend that where the provisions of the Aarhus convention have been given effect in UK law and meet the definition of environmental law, they will fall within the remit of the OEP. The OEP will consider which legislation falls within the definition on a case-by-case basis.
There are, of course, areas in which, appropriately, provisions implementing the convention may not be included in the OEP’s remit. For example, under Clause 45(2)(a) provisions on the
“disclosure of or access to information”
are specifically excluded from the definition of environmental law and therefore from the OEP’s remit. This is to avoid overlap with the role of the Information Commissioner’s Office, as we discussed in one of our earlier debates. Amending the definition as proposed would therefore result in confusion, including over the functions of the OEP and the Information Commissioner’s Office.
In response to the comments of the noble Baroness, Lady Bennett, on air pollution, Defra makes air pollution information available through a range of channels. It also informs a network of charities, including the Asthma UK and British Lung Foundation partnership, the British Heart Foundation, the Cystic Fibrosis Trust and the British Thoracic Society, when elevated air pollution levels are forecast to ensure that information reaches the most vulnerable. It will not be bullet-proof or foolproof, but the attempt is there and the mechanism is there to provide that information to those who need it. More broadly, there are several ways in which the public can access air quality information, including through mainstream media, air quality alert systems and dedicated websites, such as those of the UK air and health charities and numerous campaigns. There are a number of alert systems, including in Manchester and London, that people can sign up to, often funded by local authorities. As I say, this is not a bullet-proof or foolproof process. Like everyone in the Committee’s, my heart goes out to Ella’s family. What happened to her absolutely needs to be the basis for all kinds of lessons learned and adds another layer of urgency to the work we are doing through this Bill in relation to air quality.
This group concludes the governance part of the Bill. I have appreciated the interest of all parties in the Committee in this important part of the Bill. I conclude by reaffirming that my door is open to continued discussions on these and other essential issues.
Before I ask my noble friend to withdraw her amendment, I note the comments of the noble Baroness, Lady Jones. There are plenty of areas in which I expect the Bill will improve, but it is not within the gift of a Minister unilaterally to decide which amendments should be accepted. I do not think there is any doubt in the department I work for that there are areas in which the Bill can and should be improved. Plenty of very helpful amendments and suggestions have been put forward by the Committee. With that, I ask my noble friend to withdraw her amendment.
The Deputy Chairman of Committees (Lord Duncan of Springbank) (Con)
I have received no requests to speak after the Minister, so I move to the mover, the noble Baroness, Lady McIntosh of Pickering.
Member’s explanatory statement
See the explanatory statement for new Clause (Environmental targets: species abundance).
Lord Goldsmith of Richmond Park (Con)
My Lords, I thank all noble Lords for taking part in this debate. It is a rare area of almost complete consensus—the shared horror at the horrific legacy our throwaway culture has left us and every society on earth. I think the World Economic Forum said that by 2030, if trends continue, there will be more plastic in the world’s oceans, as measured by weight, than fish, which really is almost unimaginably horrible to think about.
The resources and waste provisions in the Bill introduce much-needed reforms to tackle waste of all kinds and increase our resource efficiency. The measures look across the product life cycle, from design to use to end of life, ensuring that we are maximising our resources and adhering to the waste hierarchy.
I thank noble Lords for their amendments. I will begin with Amendment 119, for which I thank the noble Baroness, Lady Jones of Whitchurch. Our recent consultation on extended producer responsibility for packaging committed to the implementation as soon as possible and proposed a phased approach commencing in 2023. These are, rightly, major reforms—almost revolutionary, as the noble Lord, Lord Teverson, suggested—and we need to listen to those who are going to be impacted by them and ensure that they are able to adapt.
I am pleased that stakeholders have welcomed the measure, such as the Food and Drink Federation, which said:
“Food and drink manufacturers want to be accountable for the packaging they place on the market and an effective and cost-efficient system has the potential to be an enabler for increased investment in recycling infrastructure.”
We are currently analysing responses to the consultation and will publish our response as soon as we possibly can. We also remain committed to introducing these reforms as quickly as we can. But, unfortunately for those, like me, who are impatient for this change, the system is such that, because we are introducing individual schemes, and because those schemes have a significant impact on products and the producers of those products, each one of those schemes needs consultation and will require an SI. There will be process, and that process is largely unavoidable.
All I can tell the noble Baroness and others who support the amendment is that I and my colleagues in Defra are committed to doing this as quickly as possible. We want to go as quickly as we can, but we also want extended producer responsibility to be extended as far as it possibly can. We want an extensive programme, because we recognise that extended producer responsibility, taken to its logical conclusion, is a really significant part of the solution if we want to get to a zero-waste or circular economy.
On Amendments 120 and 120A, tabled by the noble Lords, Lord Bradshaw and Lord Chidgey, respectively, the Government echo the concern around the Committee surrounding the damage caused to sewerage systems and the wider environment by the incorrect disposal and abundance of wet wipes and the use of inappropriate cleaning products, a point also made by the noble Baroness, Lady Scott of Needham Market. Small sewage discharges from septic tanks and small sewage treatment plants in England are already regulated under the general binding rules, which specifically state that the discharge from septic tanks must not cause pollution of surface water or groundwater.
Nevertheless, I assure the Committee that we have a number of additional possible routes to tackling this issue through the Bill. Powers in Schedule 5 to the Bill could require wet-wipe producers to pay for the disposal costs of discarded and used wet wipes. Schedule 6 allows us to mandate for wet-wipe producers to put information on packaging regarding their correct disposal, including “do not flush” directions or clearer alternative text on products not suitable for those with a septic system, to answer the noble Lord, Lord Chidgey. I would like to advance progress in this area as well, as quickly as possible. That ambition is shared by all my colleagues in the department.
Closely related is Amendment 292 on nappies, tabled by the noble Baroness, Lady Bennett of Manor Castle. The powers that we seek in this Bill will enable us to act, if necessary. We explicitly outlined this on page 161 of the Bill’s Explanatory Notes to make it clearer in response to discussion on this important issue in the other place. We have also commissioned an environmental assessment looking at the waste and energy impacts of washable and disposable products. This will bring our evidence base up to date, putting us in the best possible position to decide what action to take. That report will be published within a matter of months and certainly this year.
The noble Baroness is right to highlight this. She almost apologised at the beginning on the basis of it sounding marginal, but, as she pointed out, it is not. The amount of residual waste that is made up of used nappies is staggering. Clearly, we must move to a situation where the incentives are such that people by default use genuinely biodegradable alternatives, if they have to use disposables, or even better, washables, although they come with inconvenience that not everyone can accommodate. To answer the noble Baroness, Lady Bakewell, I believe that I was dressed in throwaway nappies as a child. It was a long time ago—it feels even longer after a few weeks trying to get this Bill through the House—but we were all guilty, without a doubt, and we need to see a shift in the right direction. We have in this Bill the tools that we need to foster that shift.
I thank the noble Baroness, Lady Scott of Needham Market, for Amendment 124, which calls for a scheme in relation to disposal costs of single-use plastics. Clause 50 enables regulations to require those who place specified products on the UK market to pay disposal costs. While the clause could technically be used for a scheme on single-use plastics, the Government are already undertaking a lot of work to reduce the prevalence of single-use plastics and, therefore, do not think that a specific scheme under Clause 50 is necessarily the right course of action. Instead, Clause 54 provides powers for charges to be applied to any single-use item containing plastic. We also have powers under the Environmental Protection Act 1990 to prohibit or restrict the use of certain substances. Noble Lords will know that last year, we used these powers to restrict the supply of single-use plastic straws, stirrers, cotton buds, et cetera. In May, the single-use carrier bag charge was doubled to 10p.
In answer to questions put to me by a number of noble Lords, including the noble Baronesses, Lady Humphreys and Lady Scott, and the noble Lord, Lord Cameron, we have the tools to extend that ban, and very much hope that we will extend it, because clearly straws, stirrers and cotton buds need to be a start, not an end, if we are to phase out the use of unnecessary single-use items. The consultation that I mentioned earlier covers proposals to ensure that businesses pay the full net disposal costs of all packaging, including single-use plastics.
My noble friend Lady Neville-Rolfe raised a number of issues and appealed for a cleaner and simpler system. I sympathise with her. We are bringing in a tax system so that products which are made without a threshold of recycled plastic will be taxed a virgin plastic tax, which, I hope, will stimulate the market for recycled plastic.
However, in addition to that, I do not think it is possible through taxation to get to where we need to get to. That is why extended producer responsibility is such an important part of this, as it requires producers to shoulder the full lifetime cost of a product. Equally, no matter how sophisticated extended producer responsibility, or the virgin plastic tax that I mentioned, and some of the other measures that we have talked about today, may be, there is no escaping the need for bans in certain circumstances. That is why we have introduced some bans, and we will certainly be introducing more.
On Amendment 127, tabled by the noble Lord, Lord Lucas, before making regulations under the powers in Clauses 51 and 52 and Schedules 6 and 7, the Government will consult stakeholders as appropriate. As part of this, the Government will carry out and publish impact assessments in accordance with standard practice and the requirements of the specific provision. I hope that the noble Lord is somewhat reassured by that. I note his return to the theme of transparency, and bringing the public with us, and he is right. That is a challenge that we need to bear in mind every step of the way. The impact assessments that I just mentioned will cover the resource efficiency benefits of the proposed regulations, having regard to the underlying environmental goals of these provisions.
Finally, on Amendment 128, tabled by the noble Lord, Lord Teverson, the existing provisions in Schedule 6 already allow us to include requirements about the design of labels, and in exercising these powers the Government will encourage the use of clear and consistent labels that consumers will be able to recognise and act on. That, of course, will include information on whether a product is recyclable. The precise design of future labels or other means of communicating product information will be subject to further policy development, including evidence gathering, analysis and consultation with all the obvious stakeholders. So I hope I have been able to provide clarity and some reassurance to noble Lords, and I ask them to withdraw or not move their amendments.
The Deputy Chairman of Committees (Baroness Finlay of Llandaff) (CB)
I have had one request to speak after the Minister, from the noble Baroness, Lady Meacher, so I call the noble Baroness.
Lord Goldsmith of Richmond Park (Con)
I thank the noble Baroness for her helpful comments. I hope that in the course of my speech I addressed many of them, on issues such as labelling and so on. I say only that the word “may” is standard drafting practice. I would love to see every “may” become “shall”, but that tends to be the way that things are written. As she noted, we have all the tools we need to deliver very radical change. Combined with the targets we are setting elsewhere in the Bill on biodiversity, waste and a whole range of issues, I do not believe that even a reluctant Government would be able to escape the need to use those tools to their maximum. So I am much more optimistic than she is that Governments, whether they like it or not, are going to have to take advantage and make use of those tools. I hope that that addresses the main thrust of her argument.
The Deputy Chairman of Committees (Baroness Finlay of Llandaff) (CB)
I have received another request to speak from the noble Baroness, Lady Neville-Rolfe.
Lord Goldsmith of Richmond Park (Con)
I apologise for not addressing that point earlier. I think my noble friend has almost answered her own question: the key for most of these products will be in the labelling. As she said, we need clear labelling. That is where most consumers will get the information they need about a specific product. She disagrees—but if labelling is clear, I think consumers will be much more likely to treat products in the way that they are supposed to be treated. However, that is clearly not the extent of the consultation or outreach that we will do. If she wants details about the plans coming up, I will write to her; I hope that is okay.
Baroness Jones of Whitchurch (Lab)
My Lords, I thank everyone who has contributed to this debate. We have heard some excellent proposals about how we can, for example, improve the labelling of items to make sure that we recycle and reuse efficiently. The noble Lords, Lord Bradshaw and Lord Chidgey, and others are rightly concerned about what is being flushed down our drains—the noble Lord, Lord Bradshaw, gave us some vivid examples of the consequences of non-flushable items clogging up our sewers. We clearly need action on wet wipes. The statistic that we are flushing 7 million wet wipes a day down the drains is truly shocking. How can so many consumers not know the damage that is being done by these actions? It is a matter of communication as much as anything. I did not see the “Panorama” programme, but I saw the chunk of fatberg that was on show at the Museum of London a couple of years ago and I can verify that it was truly horrific.
The noble Lord, Lord Teverson, raised an important point about the proper labelling of products with an agreed improved design—he is quite right about that. He points to the success of energy-efficiency labelling and we can all identify with the urgent need for consistency and clarity of labelling. The amendment of the noble Lord, Lord Lucas, echoes this need for clarity and for the detail of the resource efficiency of products so that people can make informed choices. He is right that we should ensure that products such as domestic equipment should be designed for long life. We should know what we are buying and what the ultimate lifespan of these materials is.
As the noble Earl, Lord Lytton, said, it should be easy to do a great deal better on this issue. The noble Baroness, Lady McIntosh, asked what the Government are doing on labelling. I understand that there is already considerable work going on to agree a consistent labelling regime, but maybe the Government should make it more of a priority to choose a system and sign off the design so that we can all see it in practice.
The noble Baroness, Lady Scott, is pursuing the same approach as I have taken in my amendment, which is to try to pin down the Minister and the Government on dates—in this case, on the use of single-use plastics. I agree absolutely that it should be possible for the Government to publish such a scheme by the end of the year. The issue of single use is going to be a running theme through a number of groups as we debate them in the coming hours and days.
I was quite taken by what the noble Baroness, Lady Humphreys, said about the perverse application of the internal market, which was surely never intended for the use that it is now being put to, which is stopping the Welsh Senedd taking more immediate action on single use. I am not sure whether the Minister addressed that issue, but it was never intended, I am sure, that the internal market should have that effect.
Finally, the noble Baroness, Lady Bennett, raised the huge issue of disposable nappies and the environmental damage that they create by being dumped in huge quantities in landfill or misplaced in other recyclable waste streams. She gave us some shocking examples about their impact on the environment. I pay tribute to the work of the Nappy Alliance and all others who have campaigned tirelessly on this issue. We urgently need a cultural shift to using reusable nappies, as well as better information about the materials and packaging used in disposable nappies. As the noble Lord, Lord Cameron, said, many people think they are made from paper and do not realise that they have a plastic content. I thank the Minister for updating us on the work that the department is doing on this problem, but clearly there is far more to be done.
Finally, I welcome the many comments from around the Chamber in support of my amendment, but the Minister will not be surprised to hear that I am a little disappointed in his response. I do not doubt his personal commitment, but the truth is that the introduction of extended producer responsibility has already been delayed. It has been three years since it was first proposed, and our deadline will take another three years, so it is absolutely reasonable. As the noble Baroness, Lady Bakewell, said, she would have introduced a much more immediate deadline. I understand that we have to allow time for producers to adjust, but if we do not set a deadline there is a real danger that they will simply drag their feet in the consultations and we will find that we are consulting more and more without an immediate deadline to focus individual minds. I have to say that we feel that there should be more ambition and that our date and deadline is a reasonable deadline for producers to deliver.
As a final point on that, noble Lords just said that the use of “may” was standard phraseology, but there are some “musts” in the Bill, so we could have had a “must” on this occasion. Perhaps that is something we can look at when we return, as we inevitably will, to this issue on Report. In the meantime, I beg leave to withdraw the amendment.
“(2) The requirement in sub-paragraph (1) may be met by consultation carried out before this paragraph comes into force.”Member’s explanatory statement
This amendment provides that the consultation requirement in paragraph 8 of Schedule 4 may be met by pre-commencement consultation.
Lord Goldsmith of Richmond Park (Con)
My Lords, in moving technical government Amendment 121, I will also speak to similar government Amendments 122, 125, 126, 129, 132, 146, 147 and 151 in my name, which would allow for public consultations undertaken during this Bill’s passage to count towards the corresponding statutory duty to consult. These minor and technical amendments reflect the work that has continued while the Bill has been paused, including the launch of consultations that were recently undertaken—for example, on deposit return schemes, extended producer responsibility and consistent recycling collections.
Also in this group is government Amendment 278. The Bill establishes a number of functions that are to be exercised concurrently by Ministers of the Crown and the devolved Administrations. These enable us to provide for common UK-wide approaches in future, with agreement from the devolved Administrations. However, restrictions in Schedule 7B to the Government of Wales Act 2006 prevent the Senedd removing such a function of a Minister of the Crown without the consent of the UK Government.
The Welsh Government have raised concerns over the Senedd’s ability to end the concurrent arrangements in future in the light of those restrictions. The UK Government agree that the restrictions are not appropriate in these circumstances. Amendment 278 would therefore carve out the concurrent powers in the Bill from the consent requirements. This is in line with the approach taken to carve out concurrent functions in other enactments through the Government of Wales Act 2006 (Amendment) Order 2021.
I beg to move.
Lord Blencathra (Con)
My Lords, I declare my environmental interests as in the register. However, today, I speak in my capacity as chair of the Delegated Powers Committee. I will speak to Amendments 148, 150, 160, 190, 191, 231, 243 and 250, which flow from the recommendations in our report on the delegated powers in the Bill. The changes that I am proposing are incredibly modest; the reason for that is that the Bill has satisfied my committee on the vast majority of delegated powers in it.
To set my proposed amendments in context, we said in our report that Defra’s delegated powers memorandum was “thorough and exceedingly helpful” and
“a model of its kind”.
This is a massive landmark Bill of 141 clauses, 20 schedules and eight different parts. It has 110 regulation-making powers but 44% of them are affirmative, which must be a record. We recommend that only one of those powers be upgraded from negative to affirmative. It has 17 Henry VIII powers but 15 are affirmative. One of my amendments seeks not even to delete one of the Henry VIII powers but merely to limit it.
I contrast what Defra is doing with the delegated powers in this Bill with one from BEIS that we reported on last Friday: the Advanced Research and Invention Agency Bill. It has a mere 15 clauses and deals with a single issue yet, as we have seen many departments do ever since they learned this ploy from the European Union (Withdrawal) Act, BEIS has tacked on a completely unnecessary Henry VIII power to amend any Act of Parliament since 1066.
So the Environment Bill is very good in delegated powers terms but my amendments seek to make it an absolute exemplar across the whole of government. Let us take the easy ones, which I am sure my noble friend can assent to just like that. Amendments 148, 150, 195, 231, 243 and 250 simply ask him to adopt exactly the same procedure that is already in Clause 24(4), which is to lay the published guidance before Parliament. Where guidance is statutory and has to be followed, we in the Delegated Powers Committee say that it should be approved by Parliament, but guidance that is merely intended just to guide does not need parliamentary scrutiny. The Bill therefore has a provision in Clause 24 that the Secretary of State can issue guidance to the OEP while subsection (4) says that the guidance must be laid before Parliament and published.
Baroness Hayman of Ullock (Lab)
I am very pleased that we are discussing consultation today, even if it is in a very small way. It was good to hear the speech of the noble Baroness, Lady Neville-Rolfe, and her request for more information on exactly what the proposals for precommencement consultation mean and what areas they will affect—because this is clearly an important issue.
Noble Lords may not be aware that I was an associate of the Consultation Institute, and it was my job to go out and consult local communities when major infrastructure projects were coming their way—so I have for many years taken a close interest in the Government’s consultation exercises. Some of them have been very good, and some of them have not. Consultation is now a fact of modern public life, yet it has all too often been mistakenly characterised as the art of listening. So, if noble Lords will indulge me, I shall share the definition used by the Consultation Institute, which may be something the Minister can pass on to his colleagues. It says:
“The dynamic process of dialogue between individuals or groups, based upon a genuine exchange of views, with the objective of influencing decisions, policies or programmes of action”.
I hope that the consultation and precommencement consultation proposed in the Bill mean not only that the Government will listen but that those who take the trouble to take part will genuinely be heard and will influence the outcome of this legislation in a positive way.
The noble Baroness, Lady Humphreys, talked about her and others’ concerns regarding how the legislation would affect Wales and the Senedd’s powers of scrutiny. As the Minister said in his introduction, Amendment 278 addresses these concerns, so I hope that the Government will continue to work with the Senedd in a positive way on these important environmental issues.
I thank the noble Lord, Lord Blencathra, for his introduction to his many amendments. It is important to look at his proposal to publish guidance, because it is important that we have transparency around that. It should be published or laid before Parliament when the issues are of importance. So I support him in that, because I believe that it is good practice, and his committee has clearly recognised that. I was also interested to hear that the noble Lord’s committee had suggested moving certain procedures from negative to affirmative. Having read his amendments, I note that these are clearly in very important areas concerning this part of the Bill, so we believe that the Minister should take a close look and listen to the committee. I thank the noble Lord for drawing my attention and that of this side of the House to those matters, and I look forward to the Minister’s response.
Lord Goldsmith of Richmond Park (Con)
I start by thanking my noble friend Lord Blencathra for his contribution to this debate and particularly for his committee’s hard work on the Bill. The Government very gratefully received the recommendations of the Delegated Powers and Regulatory Reform Committee report, and I assure the noble Lord that we are very actively considering them and will bring forward a response imminently. I thank him very much for his thoughtful comments and work on this. I also thank the noble Baroness, Lady Humphreys, for her kind words.
I turn to the questions put to me by my noble friend Lady Neville-Rolfe. We are bringing forward these amendments principally so that we can deliver some of the measures that we were talking about in the last debates—extended producer responsibility, the deposit return system, and so on—as quickly as possible. There is a demand for us to do so, and that is the purpose of the amendments.
The areas within scope are all parts of Clause 54. In particular, we are considering whether guidance should cover the circumstances where it may not be technically or economically practical or where there may be no significant environmental benefit to separately collect recyclable waste streams. In addition, we are considering whether it should cover the frequency with which household waste other than food waste should be collected and the kinds of waste that are relevant for the purposes of commercial or industrial premises. The guidance may make different provisions in relation to household waste, non-domestic premises and commercial and industrial premises. That is broadly the scope, but I am happy to follow up with more detail. I think that the reason—which is to accelerate some of these important initiatives—will be broadly supported by the House, so I would be grateful if my noble friend Lord Blencathra would not press his amendments.
Lord Framlingham (Con) [V]
My Lords, I am grateful to have the opportunity to say a few words after the Minister. I am also pleased not to disappoint my noble friend Lord Caithness, because I plan to say a word or two about that major infrastructure project HS2. It is fascinating that HS2 gets only passing references in a Bill on the environment. Perhaps this is because no one really wants to study the matter in detail and be forced to admit what a dreadful effect it is having, and will continue to have, on our environment and what a huge mistake it will turn out to be.
It is a tragedy that when the Government are doing so well on environmental issues—with this Bill, for example—and there is a huge increase in tree planting, a matter close to my heart, they should give their blessing to this unnecessary and destructive scheme. It is what is called a vanity project, serving little useful purpose, and will turn out to be the greatest manmade environmental catastrophe of our time. It will, without a shadow of a doubt, do far more damage to our countryside and people, and people’s lives, than it can possibly compensate for.
The scale of the damage is unbelievable and will include irreparable damage to many of our ancient woodlands. The very suggestion, which has been made, that they could be moved or replicated is, to anybody with the slightest understanding of these matters, quite ludicrous. It is hard to grasp the enormity of the operation. Its biggest site to date, at the southern end, covers 136 acres. It has just started boring a 170-metre long tunnel under the Chilterns that will take its massive boring machines, working 24 hours a day and seven days a week, three and a half years to complete. Already, there are problems with the local water supply, caused by the extent of the drilling through the chalk. I suspect that there will be many more unforeseen difficulties ahead.
I could go on to list all the environmental damage and despair that this project has caused, and will continue to cause, along its route. But I will not, partly because it is too depressing and partly because it will soon be obvious to everybody. I do not expect the Minister to accept, as I do, that HS2 should be stopped even at this late stage. But will he, at least, promise to watch the operation like a hawk and do all he possibly can to compel HS2 to minimise the damage it does?
Lord Goldsmith of Richmond Park (Con)
I thank the noble Lord for that final comment. I am very happy to give him my absolute assurance that I will do whatever is in the power of Defra to ensure that, whatever the outcome of HS2’s construction, nature is left in at least as good a position as it currently is. I believe that is the commitment it has made: no net loss, even though they are not in scope of biodiversity net gain.
“(2) The requirement in sub-paragraph (1) may be met by consultation carried out before this paragraph comes into force.”Member’s explanatory statement
This amendment provides that the consultation requirement in paragraph 20 of Schedule 4 may be met by pre-commencement consultation.
“(2) The requirement in sub-paragraph (1) may be met by consultation carried out before this paragraph comes into force.”Member’s explanatory statement
This amendment provides that the consultation requirement in paragraph 10 of Schedule 5 may be met by pre-commencement consultation.
Baroness Parminter (LD) [V]
My Lords, this is a powerful suite of amendments to tackle waste and our throw-away culture. As the noble Baroness, Lady Jones of Whitchurch, said, the Government have had some success in tackling the low-hanging fruit—issues such as cotton buds containing plastics—but, somehow, sachets did not quite get included in the early initiatives. Clearly, with Covid, some uses of single-use sachets are helpful, but, in other instances, such as beauty products, it is really time for them to be banned.
The noble Baroness, Lady Jones of Whitchurch, made a very compelling case for more duties on companies to ensure that there is mandatory reporting of plastic packaging. In the past, this Government have trusted too much in companies and gone down the route of voluntary schemes. Now is the time to encourage more mandatory reporting of companies in this critical area.
Of course, we are not just talking about plastics here. I was pleased to co-sign Amendment 139, in the name of the noble Viscount, Lord Colville, which will encourage charges for all single-use items. He very powerfully made the case that a number of these alternatives are equally environmentally reckless and certainly will not cut our global greenhouse gas emissions, so we have to not only tackle single-use plastics but look at the alternatives that might be proposed.
My noble friend Lady Bakewell of Hardington Mandeville has done an absolutely sterling job tonight of raising a number of key issues and, in this group, lucidly reflecting on the issues around the importance of compostables, which can make a real contribution to moving towards more sustainable packaging alternatives. As the noble Baroness, Lady Jones of Moulsecoomb, rightly said, the public need more education about compostables, and we need more local authorities to be collecting compostable films, because not all of them can be composted in back gardens—and indeed many households do not have back gardens, so they could not use compost bins even if they wanted to.
On behalf of the Lib Dems, I say that we absolutely support the Government’s plastic tax initiative, which is very welcome, although it clearly needs to avoid perverse penalties that would curtail the options for compostable films and incentivise their development for the future.
It was interesting to hear what the noble Lord, Lord Blencathra, said about polystyrenes, which is clearly an area that needs a lot of attention. Like the noble Baroness, Lady Altmann, I think that this is a complex issue, and, in the long term, we need to look at how they can be used less in construction. However, now we absolutely need to support alternatives, because these exist for food packaging. The noble Baroness, Lady Bennett, clearly made the case that this has been happening in a number of places around the world already. We need to get on to this and address the issue of stopping polystyrene being used in food packaging.
Like other Members, I attest to the fact that there is support on all Benches for more support and action by the Government to tackle waste. As we move towards the end of the evening, I hope that the Minister might be able to respond positively at last to some of these amendments.
Lord Goldsmith of Richmond Park (Con)
Before I address the individual amendments in the group, I reiterate that the Government absolutely share the concerns associated with the proliferation of plastics. I assure Members across the House that measures in the Bill will vastly improve the tools that we have at our disposal to tackle plastics pollution and the damage that they cause.
I thank the noble Viscount, Lord Colville of Culross, for Amendment 139. Noble Lords have spoken extensively and unanimously about the need to combat plastics and the damage that they do to the environment. I know that litter picks on the beaches near Culross find a significant amount of single-use plastic, as they do on all beaches, sadly, even those around the Pitcairn Islands, which are the most remote on the planet.
The Bill provides a robust approach to help to move towards a more circular economy in all sectors. Items that are not captured by Clause 54 could be captured by other measures, such as EPR or resource efficiency. In response to the noble Viscount, Lord Colville of Culross, I say that I stand by my earlier comments about resource use more broadly and the need to reduce waste and our impact on the planet generally. I do not think that we disagree—we know that, in the open environment, plastics endanger wildlife in a particular way. As has been said, unlike other materials, they will persist for hundreds of years—we do not actually know how long, because none has fully decomposed— which is why we believe that they require particular, special forensic attention through these measures. Through the Bill, powers to place charges on single-use plastic items will be a powerful tool in helping us to reduce unnecessary single-use plastics.
The noble Viscount also mentioned cups. To reassure him: I recently learned that disposable cups filled with liquid drinks are classified as packaging and therefore obligated under the packaging producer responsibility regulations.
Baroness Bennett of Manor Castle (GP)
My Lords, I have a very simple question. The Minister referred to the Government already having power to ban materials such as certain sorts of polystyrene containers. Do they have any plans to take such action?
Lord Goldsmith of Richmond Park (Con)
Do we have plans? We are committed to extending our bans on unnecessary single-use packaging and have a 25-year environment plan to phase out all unnecessary use of plastic, not just single-use plastic, so in that sense, yes, we do have a plan. The noble Baroness is right that there will need to be continuous pressure. I think that pressure will continue to grow from consumers, voters and from parliamentarians of all parties to accelerate those bans and expand their remit. From my point of view, I have ambition and hope that we will expand that approach as far and wide as we possibly can and as quickly as we can.
Baroness Jones of Whitchurch (Lab)
My Lords, I thank all noble Lords for the support for my noble friend Lady Ritchie’s amendments, particularly on action for transparency and for tackling the use of sachets.
The noble Viscount, Lord Colville, made a very important point: we need a holistic approach to the banning of all single-use products. That point was very well made. He also quite rightly made the point that it is often hard to know the composition of the materials you are dealing with, particularly single-use materials. Some of them conspire to look like wood but they are not always wood, for example.
The noble Viscount also decried the huge amount of packaging that comes with online purchases. I could see loads of heads nodding when he mentioned that. The noble Lord, Lord Blencathra, rightly pointed out that polystyrene is also massively overused in packaging when other materials that can be more easily recycled are available. We very much support his plea for a ban in that regard.
The noble Baroness, Lady Jones, quite rightly reminded us that history will judge us badly if we do not tackle plastic and that we may well find out that, historically, it is seen as damaging as asbestos. She is quite right about that. As the Minister said, we do not quite know the full effects of plastic in the environment yet. We are yet to find out some of those horrors.
The noble Baroness also quite rightly pointed out some of the difficulties with biodegradable and compostable plastics, which break down differently in the waste stream. There is a lack of guidance for waste managers and a lack of information for consumers at the present time. It is important to tackle that issue if we are to encourage the use of compostable plastic in the future; I was interested to hear what the Minister had to say on that.
I am so glad that the noble Baroness, Lady Boycott, raised the issue of plastic face masks. It was shocking to hear that we are throwing away 3 million face masks a minute. I know that the Minister is passionate about this, as he demonstrated earlier in the debate. I do not know whether we could get away with announcing a complete ban on plastic face masks but perhaps we could have a quick win—maybe a world first—if we required all workplaces to provide all of their staff with reusable masks. That would be a fairly easy way to intervene in the current obsession with people using disposable masks.
The Minister said that there were already some requirements on supermarket reporting and he detailed some of them, but our amendment would go further, to all large employers. I hope he would agree that there is a real need to tackle the greenwash claims that abound among some employers and supermarkets. We need to have the facts out in the open to shine some light. What was the comment from the noble Baroness, Lady Bakewell: sunshine is the best disinfectant? That is what we need: some more light shone on these claims.
Did the Minister mention our sachets campaign? That is the thing that got the most support from around the Chamber. Maybe that could be another quick win, if the Minister was so inclined to have a sachet ban. Quite honestly, I do not think that most people would miss them if they were not there.
I will report back to the noble Baroness, Lady Ritchie, on the nature of the comments made today, but in the meantime, I beg leave to withdraw the amendment.
“(1A) The requirements in sub-paragraph (1) may be met by consultation carried out, and assessments and draft regulations published, before this paragraph comes into force.”Member’s explanatory statement
This amendment provides that the consultation requirement in paragraph 5 of Schedule 7 may be met by pre-commencement consultation.