Second Reading Committee
Wednesday 7th July 2021
(3 years, 5 months ago)
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Arrangement of Business
The Deputy Chairman of Committees (Lord Brougham and Vaux) (Con)
Good afternoon, my Lords. The Hybrid Sitting of the Second Reading Committee will now begin. Some Members are here in person, respecting social distancing, and others are participating remotely, but all Members will be treated equally. I ask Members in the Room to wear a face covering except when seated at their desk, to speak sitting down and to wipe their desks, chairs and any other things they touch before and after use. If the capacity of the Committee Room is exceeded or other safety requirements are breached, I will immediately adjourn the Committee.
Before the Minister moves that the Bill be considered, I remind noble Lords that the Motion before the Committee will be that the Committee do consider the Bill. I should perhaps make it clear that the Motion to give the Bill a Second Reading will be moved in the Chamber in the normal way, with the expectation that it will be taken formally.
Charities Bill [HL]
(3 years, 5 months ago)
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The Parliamentary Under-Secretary of State, Department for Digital, Culture, Media and Sport (Baroness Barran) (Con)
My Lords, this Bill improves the efficiency of the charity sector by implementing the majority of the recommendations from the Law Commission’s Technical Issues in Charity Law report. The Bill simplifies a number of processes, promotes consistency and reduces overcomplicated regulation. Rather than be burdened by overly bureaucratic processes, charities will be able to focus their resources on the public good. The Law Commission and the Charity Commission are in full support of the Bill and it has been welcomed by the sector.
During the pandemic, the charity sector has received several billion pounds of support from the Government, including a £750 million package of support for charities, social enterprises and the voluntary sector, as well as benefiting from the cross-economy measures that the Government have introduced. We are deeply grateful to the thousands of charities and social enterprises, large and small, that have provided practical and emotional support to people in every corner of this country. It is now time for us to address regulatory change that will continue to make a difference to charities in the longer term.
In 2017, the Law Commission published its Technical Issues in Charity Law report, taking inspiration from the review of the Charities Act in 2012 produced by my noble friend Lord Hodgson of Astley Abbotts, and after extensive consultation with the charity sector and charity law stakeholders. The Law Commission gained valuable insights from an array of consultation events and meetings involving representatives from across the sector. This close engagement has led to various iterations of the proposals, and the Bill reflects this extensive input and scrutiny.
This is a highly technical Bill. However, the changes that it brings will, together, give charities more flexibility, time and resources to fulfil their charitable purposes. While we must ensure that the appropriate safeguards are in place to protect the public’s trust in the sector, we also have a duty to shape legislation to work for those delivering such vital services, helping those in need and working to improve lives. I believe that the Bill strikes a sensible balance between protecting charities’ assets and avoiding unnecessary expense and bureaucracy. The Bill makes a number of amendments to the Charities Act 2011. I will now explain the changes that the Bill will bring, grouping the clauses into themes for clarity.
Clauses 1 to 5 of the Bill will simplify current processes for amending governing documents and provide greater flexibility. The Bill will align these amendment mechanisms as much as possible across the different legal forms that charities can take.
Clauses 6 and 7 make it easier to use funds from a failed fundraising appeal for other similar purposes, alleviating the need for charities to expend time and resources to search for donors of small donations.
Clauses 9 to 14 concern the use of permanent endowment. The Bill will open up more opportunities for trustees to exercise flexibility in making decisions that are in the best interests of their charity, allowing them to utilise their permanent endowment better and make social investments, while protecting the enduring nature of such funds. The Bill creates a clearer definition of permanent endowment and a new power for trustees to borrow from their permanent endowment, and it streamlines the existing power available to trustees to release those funds.
Clauses 15 and 16 concern ex gratia payments, which are payments that trustees want to make morally but cannot make legally. The Bill allows charities to make relatively small payments without seeking Charity Commission authorisation. It also reframes the test so that trustees, if they want to, can delegate the decision to make these payments to the charity’s staff.
Concerning land transactions, Clauses 17 to 24 will remove ineffective and disproportionate statutory requirements around disposals of land by charities, create a simple process for ensuring compliance with statutory requirements and pave the way for secondary legislation to broaden the pool of advisers at trustees’ disposal.
Regarding inappropriate charity names, Clauses 25 to 28 expand the Charity Commission’s powers in respect of misleading, offensive or very similar charity names to remove anomalies and prevent an inappropriate name appearing on the register of charities.
Charities could not function without the vital role of trustees. In Clauses 29 to 31, the Bill allows charities to source goods from trustees, subject to safeguards, removing a gap in the current law. It also enables the Charity Commission, in limited circumstances, to authorise trustees to be paid for specific work that they have carried out for the benefit of the charity.
In relation to incorporations and mergers, Clauses 32 to 35 save administrative costs by ensuring that legacies in wills can be transferred to a merged charity and by automatically giving trust corporation status to corporate charities in their capacity as trustees of charitable trusts.
On charity tribunal costs, Clause 36 provides protection for trustees to avoid charities being discouraged from pursuing litigation because of the risk of having to pay the costs of proceedings personally.
The Bill contains further provisions to modernise language and to rationalise the Charities Act 2011.
All benefits I have described have been carefully balanced against the need for proportionate regulatory safeguards. We have worked closely with the Charity Commission, which will benefit from the removal and reform of unnecessarily lengthy or complex processes.
Although not a provision in the Bill, the Law Commission’s 2017 report recommended that the Government periodically review all financial thresholds in the Charities Act 2011 with a view to increasing them, by secondary legislation, in line with inflation. The Government have accepted this recommendation and agree that such a review should take place at least every 10 years and, subject to resources, we will aim to undertake a review of the financial thresholds in 2022. I can confirm that thresholds in relation to permanent endowment and failed fundraising appeals will be included in the review.
The Bill will have a positive impact on all charities, large and small, with the greatest benefits felt by small charities, for which administrative burdens and legal and professional costs are likely to be most prohibitive and disproportionate. Other than financial savings, clarity in the law will help trustees to act with confidence in their charity’s interests. Removing unnecessary layers of regulation and administrative burdens enables charities to function more effectively. In turn, we anticipate public trust to flow from charities working unhindered and able to focus fully on their charitable mission.
In closing, the Bill plays a key role in our efforts to support the charity sector. Through the valuable work of the Law Commission, those who work in charity law every day have shone a spotlight on the particular processes that drain their resources away and distract from their charitable purposes. In providing clarity and consistency in the legal framework, charities can be confident that we are here to make their paths clearer and simpler. We continue to be immensely grateful for all their work.
I hope that the Bill receives strong support from your Lordships, and I look forward to your contributions in this debate. I beg to move.
Baroness Goudie (Lab) [V]
My Lords, I declare my interests as in the register, as a trustee of a number of charities and as an ambassador.
I welcome this Charities Bill, which was announced in the Queen’s Speech on 11 May, and these important changes to charity law. I am pleased that the Charity Commission has been working with the Law Commission and the Department for Digital, Culture, Media and Sport. These consultations have been going on for a number of years, and I now have the pleasure of seeing that they will be enacted. I am also pleased that the Labour Party supports this Bill.
Charities will be able to have access to a wider group of professional advisers on land disposal. We know that many charities are left properties and land by beneficiaries who want to help them, as they are personal charities in many ways. Also, many charities have properties as investments. As a patron of the Community Foundation for Northern Ireland, I know that we were lucky to have been able to sell two large offices at a time when the charity needed investment to buy a better office and work with more staff. In difficult times, it is often necessary to sell.
I am pleased about the flexibility around charity endowments. Endowments are an excellent form of good housekeeping. In the long term, as we come out of Covid, we will have a great opportunity to encourage smaller charities to allow endowments. We have seen how this has helped some charities that have had difficulties during and prior to Covid because of difficulties in themselves. Trustees will be able to borrow up to 25% of their present endowments, but I want to be assured that there will be a way of monitoring this and ensuring that the borrowing does not endanger them. I know that trustees would not wish to do that, but outside advisers should ensure that charities and their staff are not endangered by this.
On the question of appeals, I have been involved in cases where charities have had great appeals but the companies that charities use to assist them in their appeal are not always transparent. As the Bill proceeds, I would like to see us put in a few more clauses to protect charities from these companies and show how we will be more transparent, because the companies that assist charities always get paid. I hope that charities will have full disclosure when using these companies, because sometimes the amount that they take is more than the charities are able to raise. This is a really important issue for us and for the Government, as well as to protect trustees and staff.
Charities should also be responsible for declaring what funds are used for and whether any funds are over or cannot be used for what they were raised for. This is a really important issue that should be on charities’ websites. It is also important that charities have websites—they know that they have to—with all their funding, staff, et cetera.
The Minister knows that I have a view about the future of charity boards, as we discussed at one point during an Oral Question. I hope that, not through this Bill but through other legislation, we will look at corporate governance as we come out of Covid for charity trustees and how that should operate along the lines of company boards et cetera.
Baroness Prashar (CB) [V]
My Lords, I refer to my interests as in the register. I welcome these measures to make charity regulation more effective. As a nation, we owe our charity sector a legal framework that is clear and unambiguous. These measures will make it easier for charities to navigate the law and carry out their functions effectively while retaining important safeguards.
I welcome the introduction of greater flexibility with regard to fundraising appeals. Ensuring that donations go towards the purpose intended, or as close as possible, is important, as is the trust between the donor and the charity. This change strikes the right balance. However, it would be helpful to monitor the use of this power with a view to raising the limits in the Bill.
Several changes to provide additional clarity around permanent endowments and the extension of the toolbox available to trustees in seeking to further their charitable purposes are helpful, too. Powers relating to the appointment of trustees, payment of trustees, clarity regarding transfer of gifts following a merger, and making it easier for charities to amend governing documents to dispose of land efficiently are all very sensible.
Good governance of charities is crucial both for accountable stewardship of resources and for retention of public confidence. It will, therefore, be important to ensure that the Charity Commission, as a regulator, is properly resourced and has the capacity to help implement these changes and, where necessary, to keep the changes under review.
Charities are facing difficult times dealing with the recovery from the pandemic. Some 85% of charities expect to be delivering services at pre-pandemic levels this year, but fewer than half expect a return to pre-Covid fundraising levels. If it is the Government’s role to unlock the potential within civil society, we need much greater and stronger leadership from government to support civil society to develop capacity, capability and resilience.
While these changes are really very welcome, it would be helpful to know what steps the Government will take to grow the levels of giving and philanthropy in this country. Increased giving can help charities adapt to changing circumstances brought about by the pandemic, but giving will not grow spontaneously. To build on the necessary changes in this Bill, the Government need to find ways to mobilise greater giving. It would be helpful if the Minister could take forward the need to increase giving and say what steps are being taken to increase giving along with these changes.
Lord Hodgson of Astley Abbotts (Con)
My Lords, my noble friend the Minister was kind enough to refer to the official review of the 2006 Act that I carried out now nearly 10 years ago. I take a certain paternal pride that a large number of the recommendations that I made in that report have survived and appear in the legislation before us this afternoon, but it would be quite wrong for me to say that a report that took more than a year to produce and ran to 150 or 160 pages could be produced by one person. I should begin, therefore, by placing on record my thanks to the team—then at the Cabinet Office, now at the DCMS—led by Ben Harrison, which provided such wonderful advice and support. I would also like to thank more broadly the Law Commission, whose work I think is often undervalued in your Lordships’ House, for the way in which it has picked up and improved many of the suggestions that I made. The Bill has my 100% support except in one serious matter, of which I have given prior notice to my noble friend and which I will return to in a minute.
The underlying principles for my review could be seen as follows. The charities sector has very deep roots—witness the fact that the first recorded charity, the King’s School, Canterbury, was started in 597—and therefore it reflects the very rich and diverse social life of our country built up over hundreds of years. One consequence of that is that it is not neat, and there are those who would like it to be neat. They would say, “Why don’t we just have one cancer research charity so that we can avoid duplication and waste of money?” I certainly resisted that, and I am glad that the Government have, because to do that would drive a stake through the heart of a lot of the voluntary endeavour from which our society benefits. But a consequence is that a lot of charities are pretty small. We need as simple and clear a regulatory system as possible so that charities do not have to go to lawyers and spend a lot on fees to understand what they can and cannot do. I hope that, when the Bill passes, my noble friend’s department will urge the Charity Commission to bring forward user-friendly, understandable advice about the brave new world that we will enter.
Thirdly and finally, as background, I argue strongly that whenever in the past people gave money to charities they did so to put it to work; they did not want it stuck in a bank account on some technicality. We have to find ways to make sure that the structure remains up-to-date with modern conditions.
Against that background, what are my top picks from the Bill? First, as my noble friend said, there is the commitment to a quinquennial review of financial thresholds, without which they will rapidly become of little value with inflation, and in particular applying them to the permanent endowment figures of £25,000.
Hurrah for the simplification of the procedures for selling land. I was quite astonished to find that a charity selling land is bound by all sorts of procedures, but a charity buying land, which by definition must be just about as dangerous, had almost no procedures and prohibitions at all.
Hurrah for relaxing the rules on permanent endowment so that more money can be put to work, for the reasons that I have explained.
Hurrah for simplifying the merger regime, in particular the rules that my noble friend mentioned around bequests. It was astonishing how many charities that had merged still had to be kept in existence because they still anticipated some future bequests and legacies.
Hurrah for the changes to the rules regarding failed, or indeed overly successful, appeals, with charities spending a long time trying to find people who had donated money because the appeal had got either too much or not enough money. That was a complete waste of time. People almost certainly did not want the money back. There are limits in the Bill, and I am sure that is right.
Finally, hurrah for some loosening of the way that trustees can be reimbursed for their real efforts.
Those are my top picks, but they take me to my really serious concern about the Bill. I imagine that most Members will think of the Charity Commission as the all-powerful regulator of its sector. I certainly did before I began my review. In fact, it is not. Its ultimate power is subject to the permissions of the Attorney-General. Under Section 325 of the Charities Act 2011, if the Charity Commission faces
“A question which … involves … the operation of charity law in any respect”,
it can appeal to the Charity Appeal Tribunal for a ruling
“only with the consent of the Attorney General.”
This is, I submit, an extraordinary position for the sector regulator to find itself in. It is as though one of the financial regulators, seeking a ruling on a point of law, had first to go to the Treasury to get the go-ahead. People would think that an extraordinary restriction on a regulator’s independence and power, and so it is.
I recommended that the commission should be free to appeal to the tribunal but that it should have to inform the Attorney-General of the action that it was taking. The Law Commission supported that proposal. The Government have turned it down. Therefore, the Bill as drafted means that the Charity Commission remains in the last resort under the sway of the Attorney-General.
However, this in-principle defect is made worse—far worse—by the real-life performance of the Attorney-General’s duties. I refer to the case of the Royal Albert Hall, which is a Victorian charity built in the 1880s by public subscription. It is one of London’s great cultural venues, being home to the Proms and so on. As part of the original financing, subscribers were offered seats in the hall in perpetuity. The original idea was that, on the nights that the holders did not wish to attend, they could sell their seats to the Royal Albert Hall box office for face value, less a 10% handling charge.
A few years ago, seat-holders decided that they could sell their seats much more profitably through a third-party website, so today seat-holder tickets for an Eric Clapton concert next year, with a face value of £175, are on sale through viagogo at £946—a short £800 uplift or, in the words of a television sitcom, a nice little earner. It will come as no surprise that, pre pandemic, seats were allegedly earning £10,000 to £20,000 per annum and are changing hands for more than £150,000 each. As I said before, the Royal Albert Hall is a charity and, as such, has a board of trustees. There are 24 of them, but 19 are seat-holders—80% of them. I have no objection to seat-holders seeking to enjoy their private property; that is one of the provisions of the European Convention on Human Rights. But when a seat-holder becomes a trustee, a conflict of interest must surely arise.
It was on this point of a conflict of interest that the Charity Commission sought a legal ruling for which, under the present law, it had to obtain the Attorney-General’s permission. The original application to the Attorney-General was made—wait for it—in August 2017. Four years later, we are still waiting for a decision from the Attorney-General as to what the Charity Commission can and cannot do.
In the meantime, I understand that the commission has tried to engage the trustees of the hall and suggested that, if a majority of the trustees were not seat-holders—for example, 13 out of 24—that would be a satisfactory compromise. The trustees rejected this proposal and, in a letter dated 27 April this year, the chairman of the RAH Seatholders Association described the purpose of that association, which was set up only last year, as being “to protect members’ interests from the very real threat posed by the Charity Commission”. These are strange words to use about your sector regulator.
To conclude, I stick to the proposal made in my report and supported by the Law Commission that the Charity Commission should be free to approach the tribunal for rulings on a point of law, but that the commission should be required to tell the Attorney-General that it was so doing. This is otherwise an excellent Bill, which has my enthusiastic support, but in my view we need to discuss and amend Section 325.
Baroness Greengross (CB) [V]
My Lords, I declare my interests as in the register. I welcome the changes proposed in this Bill, based on the Law Commission recommendations from 2017. I also pay tribute to the noble Lord, Lord Hodgson of Astley Abbotts, for the statutory review of the Charities Act that he carried out in 2012, and for the very relevant points that he has just raised with the Committee.
As someone who has had a leadership role in charities for many years, I know all too well how much of a burden the legal restrictions are for those trying to manage these organisations. While I welcome the proposed changes in the Bill, I do so with some words of caution as to why we must continue to have a strong legal framework governing how charities operate.
In particular, I wish to draw attention to the extension of cy-près whereby the wishes of a donor to charity can be carried out even if the original purpose of the gift has failed. The Bill proposes to extend these cy-près powers to include donations of £120 or less, or where a trustee resolution has agreed to use the funds for a different charitable purpose. In most cases, the charities would use this money sensibly and for a charitable purpose as close as possible to the original, but experience has sadly taught me that there will be times when this will not be the case. Unfortunately, it is often with small transactions or donations that fraud can occur.
For many years, I was director-general of Age Concern England. Age Concern was not, and is not, one organisation; it is a federation of local Age Concern organisations, most of which operate professionally and play an important role supporting older people in their communities. Every so often, though, in my experience, there would be a rogue element somewhere—in the federation, these things happen. On one occasion, for example, someone involved with an Age Concern local charity had managed to manipulate their partner and unbeknown to them had stolen money from the local charity to build themselves a house with a lot of land. That person was caught and ended up receiving a long prison sentence. As chief executive, I had to travel out of London to where this local charity was based to convince the local police not to publicise the case to the national press. Fortunately, they agreed, for if they had not, the reputation of the national federation would have been undermined by the actions of an individual operating in a local charity.
These stories are fortunately rare, and in this case the person responsible was caught and the money was recovered, but it illustrates why we need strong legal frameworks regulating how charities operate. While having to comply with the Charities Act is often cumbersome and time-consuming, having these sorts of rules governing charities reduces the risk of this type of fraud, so while I support the Bill and the changes it recommends, I do so with the warning that legislation and safeguards about the way that charities are run are often strict for good reason. We lose them at our peril.
Baroness Rawlings (Con)
My Lords, the London County Council’s children’s care committee was not a charity, but all of us were unpaid. Admittedly, that was a long time ago, and it was my first job. I trained subsequently as a VAD nurse and worked with the Red Cross for many years. Of the money raised, 7% was spent on administration—only 7% was allowed in those days. Today’s figures used to be available on the Charity Commission’s website, but they have been dropped. There are substantial amounts being mentioned. The NCVO is the most helpful source of information, if one need to find out more.
I fully support the fact that anyone who does a proper job and works hard should be paid a proper wage. There are more financial responsibilities nowadays; life’s demands are far tougher in today’s market than they were 50 or 60 years ago, and the competition in the market for all levels of work is greater. A few years ago, I asked the CEO of a major charity why he moved from being CEO of charity X to being CEO of charity Y. The answer was simple: “Because they paid more.” I was shocked and saddened. I am not—I repeat, not—including trusts and educational institutions such as the Wellcome Trust or research bodies with investments. That is a totally different story.
Today’s list of charities is so huge and varied and the legal position so diverse and complex, especially in the area of percentage deductions, that perhaps charity law should be revisited further than this Bill. I know that, 50 or 60 years ago, we were a very different country. With the example we have had already from my noble friend Lord Hodgson regarding the Albert Hall trustees, I wonder where it all went wrong.
However, many—indeed most—of the charities in the voluntary sector are staffed by volunteers, who do a job of some sort for no financial gain. I am not seeking to make some kind of moral judgment but simply to draw the distinction. Volunteers are not better than paid workers; indeed, they may be one and the same, in that they have paid jobs but also do voluntary work in their spare time. This is quite normal in Britain and other western democracies.
Nearly half of the British adult population are volunteers—roughly 48%, or 22 million people. Let me give your Lordships a few examples: helpers in health centres; recently retired doctors, some spending up to eight hours a day giving Covid jabs; fundraisers; lifeboat crews; local government councillors; judges; members of non-stipendiary magistrates’ courts; church wardens; choirs; bell-ringers in parish churches; Samaritans; prison and hospital visitors; and chancellors of universities. The list is endless. They are people who wish to help others less fortunate than themselves. They wish to do their civic duty. They care.
Alongside those 22 million volunteers, many of your Lordships have worked for various charities all your lives. I admit that I was lucky enough to be in a position to do so too. Like my noble friend Lord Hodgson, whose review I very much recommend, I was president of the National Council for Voluntary Organisations—a fine organisation. But what do the NCVO, the Charity Commission and all those generous people who donate their money have to say regarding the alleged percentage that some charities pilfer yearly from the kitty?
I repeat my question: why do so many so-called charities need to spend this X per cent? It is no doubt more than the 7% that I mentioned earlier. This hard-raised money is possibly being spent on overheads and administration, rent, organising events and salaries. The figures should be transparent and easy to access and check. We all know why they are not, as it is much easier to spend somebody else’s money. I fully support the cy-près powers suggested in the Bill and the Bill itself.
I urge the Minister to find a way, in the Special Public Bill Committee, that my argument and its spirit be included in this Charities Bill.
Lord Stevenson of Balmacara (Lab) [V]
My Lords, I refer to my charitable interests as outlined in the register, and I would also like to share with the Committee that I have worked with charities for most of my life and have some experience of large ones and some smaller ones. This has informed what I want to say today. I am grateful for the briefings we received, the Library produced a very good note and the NCVO and other organisations pulled together some helpful thoughts.
The Minister said that the Bill is seeking to make a series of changes that will make it easier for charities to navigate the law and carry out their functions effectively while retaining important safeguards. We broadly support what she says on this. The Bill does achieve that, although it has taken a long time to reach the point where we can see it turning into law. I hope that making it easier for charities to amend their governing documents, dispose of land and use their resources more effectively will be a useful change to the work that goes on, day in, day out, across the country in all our various wonderful charities.
However—I think I picked this up from contributions already made—I wonder whether the Bill goes far enough. In some senses, we seem to have the worst of both worlds. We have a relatively weak regulator, which is heavily burdened and not well resourced to do the sort of job it has. It has had, it could be said, a pretty poor reputation in recent years, although it has improved. The Bill is a missed opportunity to rectify some of those issues, but it is wrong to try to change too much in this Bill—we probably do have to wait for another opportunity—but I think we will regret that. The noble Lord, Lord Hodgson, and others have pointed out some of the issues that still need to be addressed.
I have only a few small points to make about the detail, but I think they will be picked up in Committee. I am a bit surprised that we still have a number of different modes of operating charities. This raises issues in itself, although there are one or two that catch the eye more than others. I am referring here to royal chartered bodies, which are also charities. There is a case for considerable overregulation, and it is no longer the case that royal charters are providing the sort of support and ring-fencing they perhaps would have done before. The classic is the BBC, with its royal charter and charitable functions underlying all it does, yet it is subject to regular approaches by Governments of all parties, but primarily Conservative Governments, and does not seem to get the protection that its charitable status might once have suggested. There is nothing in this Bill that would allow us to look at that, but it needs to be picked up at some point as we go forward.
The second point is on fundraising: the Bill does a good job in introducing greater flexibility for charities with regard to fundraising appeals, the way the Bill sets out what happens if a fundraising appeal is either too successful or too unsuccessful will help move forward and cy-près has already been mentioned by a number of speakers. However, the supporting documentation states that there is a need to monitor the process going on here, and we may have worries about how this is going to operate in practice. I could not see how that was going to be done in practice. I wonder whether when she responds the Minister could mention that and explain what is intended.
Enough has been said on permanent endowments; I do not need to go into that. The power to use permanent endowments to make social investments is a really important change in the way we are going forward, and others have mentioned that as well. The new power moves a long way towards where most charities would want to be, which is not being tied to the value-for-money constraints that have so often bedevilled what they have wanted to do, but it does not go far beyond where they might want to get to. It does not go further down that line, in the sense that it does not raise too many dangers. Monitoring will be important here, and, again, it would be useful if the Minister could respond on that point.
I have a very minor point on ex gratia payments: when I read the Bill the first time, I was a little struck by what exactly is going on here, and I still do not quite understand the argument that says this allows charities to honour moral obligations. I do not think moral obligations feature in much of the law of the land. Morally, we are probably wanting to do lots of things, but we are restrained by the law of the land and other conventions. Again, when she comes to respond, could the Minister explain where this fits into the great scheme of things, perhaps giving us some examples of where moral payments might be a useful addition to the range of things for which trustees have responsibility? I am not against it in principle; I am just a bit confused about where it will take us in the great scheme of things.
On the payment of trustees, if I recall correctly, the original report by the noble Lord, Lord Hodgson, called for quite a radical change here: that the professionalism that could come from paying trustees should be considered. It is not in this Bill, and indeed was not accepted by the Government, but it is an important issue and should not go away. Payment for goods provided by trustees to their charities, where that is properly protected, above board and perfectly transparent, must be perfectly acceptable. There is a broader question about whether or at what point we should professionalise trustees and their role, particularly in the bigger charities. A charity with which I am involved is based in America and regulated under its rules, and there it is perfectly normal for trustees of charities to be paid and, indeed, for the chief executive of the charity also to be a trustee. It is a bit of a shock if you come from the British system and work on the American system. I am not saying that I necessarily think it is the right thing for all charities, but if it works well in one country—one territory—and serves the purposes of what they achieve by charitable objectives, it may be worth looking at.
Finally, on the issues that were rejected by the Government, even though they were accepted by the Law Commission, the noble Lord, Lord Hodgson, has made a good case about seeking the permission of the Attorney-General. I look forward to seeing that when we come to Committee and to supporting him if he chooses to table an amendment in the way he has suggested.
Lord Naseby (Con)
My Lords, I, too, pay tribute to my colleague and noble friend Lord Hodgson for a tremendous amount of work done in probably one of the key areas of our national life. I declare an interest: currently I am a trustee of the Northamptonshire Victoria County History Trust. I am also involved in a whole host of charities in Bedfordshire, where I live, including the Bedford School Foundation—which I founded—and I help a number of trusts in Northamptonshire, where I represented Northampton South for 23 years.
This Bill is really welcome, and I congratulate Her Majesty’s Government. It has been a long time coming. Two Governments did nothing about it, and thankfully the present Government have got a grip of it and decided to move forward. I congratulate my noble friend on the Front Bench on having the privilege of steering it through and the Prime Minister on making sure that the Bill is on the statute book in due course.
Although one welcomes the vast majority of the work that has been done and the proposals, inevitably one looks at the elements that were not accepted by the Government. There is one element that sort of straddles, and that is land. I am a loyal user of my local Church of England church, where my wife was the secretary until very recently. I absolutely agree that Her Majesty’s Government are right to remove the proposal that there should be a requirement for charities not to advertise disposals of designated land. However, I am still marginally confused. I apologise for that, but when one is active in a parish one is very conscious that there are bits of church land that are a bit of a holding, and it is not necessarily easy to remove just a section, particularly on burial grounds. You will quite often find that there is an old burial ground and different bits of land belonging to other owners, which are already agreed in principle to be an extension of a burial ground. I just raise that issue, because I think it is important.
On Clause 12 on borrowing from the permanent endowment, I understand why charities have to borrow. It is not a good thing on the whole but, if they have to borrow, I understand why. I was chairman of a friendly society, and from memory it had a very strict rule on the percentage of borrowing. It was not left the least bit vague, and I suggest to Her Majesty’s Government that it should be quite clear, in black and white, what the percentage is and not as a general rule.
On the charity tribunal rejection, we can perhaps look at this again in Committee, but Recommendation 40 of the Law Commission review argued that it should be possible for authorisation for charity proceedings under Section 115 of the Charities Act 2011 to be sought from the court or the Charity Commission where the commission had an apparent or actual conflict of interest.
As far as I understand it, the whole of the charitable movement is supportive of the Law Commission’s suggestion because it would provide reassurance for those seeking authorisation and ensure that the Charity Commission is not suspected of using authorisation for reasons not to do with the merits of the proceedings. We only have to look at what is happening in society at the moment with statues being thrown into the Bristol docks, and others being pushed over and destroyed, to see that life in our world is changing and that somebody—it may well be the Charity Commission—needs to get a grip of those elements.
I raise one specific issue; it is much more relevant for Committee than here. I have been approached by the Spilsby Grammar School Foundation on its attempt to update its constitution. It is not appropriate to go into it in detail now but I hope that my noble friend on the Front Bench will accept some representations from the trustees and their lawyers, Sills & Betteridge, rather than me going into detail now.
I conclude by reflecting for a second—as this is a Second Reading—that gift aid, which is the foundation of much of the money that comes in to our charities, was introduced by John Major on 1 October 1990. Today, it is the world’s greatest charitable tax relief scheme. That is a major achievement for any society. It is worth well over £1 billion in tax relief and represents around 6% to 7% of voluntary income. I also pay tribute to Gordon Brown. He extended gift aid so that smaller donations would be eligible. That in itself is a great tribute.
I have just a final thought. I received in my email this morning a briefing on the social care Bill. I declare an interest as I am married to a doctor and we talked today over breakfast about whether there is a possible opportunity in that area in life to produce the equivalent of the gift aid scheme for social care. I am a marketing man and discussed this only briefly over breakfast so I have done no real deep thinking on it, but I am putting down a marker: I think there is an opportunity there.
Baroness Hayman (CB)
My Lords, I declare my interests as a co-chair of Peers for the Planet and the chair of Malaria No More UK. Like others who have spoken, I have been involved with various charities for many decades.
I certainly support and welcome this Bill and its provisions to address complicated and uncertain areas of charity law. I will leave it to others better qualified than I to comment on some of the detail, although I have past experience of legacies and ex gratia payments where these provisions will, I think, be extremely welcome.
Since we do not often debate charity law, I hope that noble Lords will allow me the opportunity to touch responsible investment, which is another area of charity law that could similarly be described as complicated and uncertain, and, in line with that, to consider how the role and remit of the Charity Commission aligns with the UK’s net-zero and biodiversity goals.
In January 2020, the Charity Commission began a listening exercise. It revealed that ambiguities in charities investment law impede some charity trustees from pursuing responsible investment strategies. The commission subsequently published a consultation on draft revised responsible investment guidance. My reading is that this continues to take a permissive approach to responsible investment but neither expects nor encourages any charity to invest responsibly. I fear that that could be interpreted as an invitation not even to consider whether responsible investment is the right thing to do.
With environmental degradation and climate action failure commonly recognised as the greatest risks we face, and with the Government arguing that all sections of society should be involved in our statutory and international obligations and support the UK’s transition to a net-zero, nature-positive economy, I have to ask whether the Charity Commission should play a part in this and encourage charities to do so themselves. The commission’s statutory remit does not include any express mention of sustainability or any requirement to promote sustainable behaviour on the part of charities. This is at odds with government policy and trends in all areas of society. The commission’s strategy documents —its five-year strategic plan and its business plan—make no reference to the challenges posed by climate change and biodiversity loss. The commission last updated its rather slim guidance on environmental sustainability in March 2013.
The Climate Change Committee’s recent progress report to Parliament emphasises the need for a net-zero test to ensure that all government policy is joined up and compatible with UK climate targets. Charities and their regulator should not be exempt from this. At a time when these changes are driving comprehensive social, economic and political change, charities should be at the forefront of responding to it and seizing sustainable opportunities, and the Charity Commission should be encouraging them to do so.
I agree with the noble Lord, Lord Stevenson, that this is not the Bill to make major changes to the commission’s functions, although perhaps in future we could look at how we could insert a responsibility for it to align with climate change goals in statute. In the meantime, much could be done through improved guidance and clarification of the commission’s role to ensure that it takes the UK’s environmental commitments into account when setting its strategy. I would be very grateful for any comments from the Minister on how the Government consider their own goals should interact with the Charity Commission’s remit, powers and guidance for charities.
Viscount Chandos (Lab)
My Lords, I thank the Minister for her very clear introduction to the Second Reading of the Charities Bill. She has exceptional commitment to and experience of the charitable sector, which informed her remarks and reinforced the authority with which she spoke.
I welcome this Law Commission Bill, even though its status limits the extent to which there can be any amendments even to the technical and tidying-up objectives the Minister summarised. Other noble Lords have already covered many of the Bill’s key issues so I propose to focus on one specific and perhaps rather narrow area relating to permanent endowments. Therefore, in drawing the Committee’s attention to my charitable entries in the register of interests, I should disclose that three of the charities of which I am a trustee have endowments, but in all cases these are expendable rather than permanent.
Before I address my specific point on permanent endowments and social investment, I pay tribute to the extraordinary work done by charities across the whole range of everyday life in our society. But, as Bill Gates, for all the financial muscle of the Bill and Melinda Gates Foundation, has regularly emphasised, philanthropy cannot and should not be seen as a substitute for proper governmental funding of public services and international aid. Unfortunately, the economic policies of the Conservative or Conservative-led Governments since 2010 have led to devastating cuts to public service budgets in so many areas, notably that of local authorities. That has forced many charities and funders to replace statutorily provided or funded services. The Government’s levelling-up rhetoric might suggest that this will be reversed, but any detailed examination of the spending assumptions for non-protected departments in the most recent Budget would dispel that optimism. None the less, I hope that in time these cuts will be reversed and philanthropy can return to a greater extent to its correct role of innovation.
Clause 13 gives trustees the power to make social investments out of a permanent endowment as long as the charity has opted into the total return investment approach. Under current legislation, social investment is made with a view to directly furthering the charity’s purposes and achieving a financial return for the charity. It is acknowledged that these investments are likely to deliver sub-market returns, including the possibility of the loss of all or a significant portion of the capital invested.
The example given in paragraph 94 of the Explanatory Notes envisages a charity with a permanent endowment committing half its funds to a single social investment in the hope or expectation that the other half of its assets would deliver sufficient return to protect the long-term value of the endowment. Maybe, but the concentration of risk in one social investment means that a perfectly realistic scenario could be the total loss of that investment, which would be highly unlikely to be compensated for by any normal level of return from a diversified portfolio of mainstream financial investments. The Esmée Fairbairn Foundation, of which I am a trustee and past chair, has been making social investments for 20 years and has suffered a number of partial and total losses on them, but that has been from about 150 different social investments with a maximum exposure of no more than a few per cent of the total value of the endowment.
I understand from the Minister that it is intended that regulations to be made by the Charity Commission in respect of this issue will have specific requirements on trustees to balance the risk and returns on a portfolio of social investments with those on a portfolio of financial investments. Will they include limits on the concentration of risk through diversification among social investments as would apply to a prudently managed portfolio of financial investments?
There is a story, probably apocryphal, of a Boston heiress arrested for an offence which she acknowledged brought shame on her prominent family, who pleaded, “But I thought it was better than dipping into capital.” Unlike her, I do not make a fetish of the preservation of capital, and I applaud major trusts and foundations, such as Gatsby, Monument Trust and the Atlantic Philanthropies, which have adopted spend-down policies, but perpetual endowments derive from the wishes of the philanthropist and settlor to enable a trust or a foundation to do its work in perpetuity, and we owe it to those philanthropists to ensure as far as possible that that is the case.
I am a bit puzzled by why this has been included. I believe that trusts and foundations predominantly have expendable endowments. Social investments can do interesting and innovative work, but they are still only a sideline and, in my view, will remain a sideline to the core activity of grant-making foundations of making grants. Will the Minister say what representations have been made on this? Did they come from trusts and foundations that have perpetual endowments, or from sponsors and promoters of social investments who may have been seeking to broaden the universe of potential investors?
The Minister said in her opening remarks that the Bill was intended to reduce overly bureaucratic processes. Investing endowments have become ever more complicated, not least because of the concerns about responsible or sustainable investing, which the noble Baroness, Lady Hayman, referred to. I am afraid I disagree respectfully with her about what I hope will come out of the Charity Commission consultation. A permissive and clarificatory outcome would be helpful, but a prescriptive one would be unhelpful.
For that reason, I deplore the legal action being taken by a number of trusts and foundations to try to make it legally required for trusts and foundations to invest in line with their mission. It should be left to the trustees of each of those foundations to judge the extremely complex issues around that. One trust or foundation may have a single focus or objective, say in the area of climate change. It is relatively possible to embed that in an investment policy, and most investors, whether individuals, pension funds or trusts and foundations, are in any event incorporating these sorts of ESG and responsible investing criteria. But making it a legal requirement to align investment with charitable objectives could make it almost impossible for a trust or a foundation with diverse objectives to invest without sacrificing significant financial return, from which the trust or foundation’s grant-making activities are derived.
I am afraid that the overly bureaucratic processes we may be eliminating in other areas may inevitably grow in the investment area. I hope that they are not excessive, but I believe that the regulations that will detail what permanent endowments can do in the area of social investment should be a little bit bureaucratic.
Baroness Fraser of Craigmaddie (Con)
My Lords, I am delighted to speak on the Second Reading of this Bill. Charities are our society’s vital safety net, so it is important, to ensure public trust and confidence, that the regulatory and legislative framework relating to charities is up to date and fit for purpose.
I refer to my interests in that I am a trustee of charities. I am the chief executive of a Scottish charity, Cerebral Palsy Scotland, and a board member of the Scottish charity regulator, OSCR. I am speaking in a personal capacity.
A great deal of assurance is to be had from the extensive consultation with the sector and other interested parties before the Law Commission’s report was published, allowing a good level of confidence in the conclusions and recommendations coming out of that work. As the noble Lord, Lord Hodgson of Astley Abbotts, said, and I love his description,
“I found that charities faced a number of historic obstacles under the current law. These unnecessary burdens on trustees act like barnacles on a boat, causing a drag when all should be plain sailing … Although its recommendations may appear to be highly technical, cumulatively I believe they would have a huge impact on the sector, helping trustees to work effectively in modern-day conditions.”
As the Minister said in her introduction, this is a highly technical Bill, but this is key and we should not apologise for it. It is simple and it has a clear purpose. We should do all we can to ensure that charity trustees can indeed work effectively in modern-day conditions. It is frustrating, as the Explanatory Notes to this Bill outline, that:
“Charities legislation is commonly perceived as being complicated, uncertain and in places unduly burdensome.”
The Bill removes some of the complexity and inconsistencies that have made English charity law difficult to apply and to regulate.
The past year and a half has brought the need for charities to be able to operate effectively into very sharp focus as they, like other organisations, have often been left with unprecedented challenges due to the pandemic but with the added challenge that, as statutory and other community services were closed or redeployed, many of them were left to deal with a perfect storm of how to meet the increased, and sometimes different, needs of their beneficiaries at a time of restrictions on their ability to operate services and reduced fundraising opportunities. The demands on trustees to be flexible and responsive and to make quick decisions has never been more crucial; I hope that this Bill will enable them to do so. It is very positive for the charity sector in England and Wales that the Government are proceeding with this legislation.
However, like my noble friend Lord Hodgson of Astley Abbotts, I am not clear why the Government rejected the recommendation from the Law Commission report that would make it easier for the Charity Commission to appeal to a tribunal on rulings of a point of law.
I am grateful to my noble friend the Minister for her explanation that the financial thresholds in this Bill will be regularly reviewed and will be reviewed in 2022. There are, however, a few points in the Bill that I would like further clarification on. I apologise in advance if these might be points better raised in Committee—please accept my relative newness in this position as my excuse.
As the aim of the Bill is to ensure that trustees can work without undue burdens, I am confused by Clause 6(3), which seeks to ensure that small gifts of £120 per year or under do not have to be returned to donors if the particular charitable purpose cannot be met. Only when you read the Explanatory Notes is it made clear that the £120 excludes gift aid, but there is no mention in the Explanatory Notes, for example, of other charges such as those incurred by online giving platforms for either the donor or the charity.
Also, the Explanatory Notes are helpful in explaining that, where such a gift is received from two or more parties, whether they are treated as an individual donor for the purposes of the total amount of the gift should be determined in each case. Can the Minister suggest an example of when it would be appropriate to treat such a gift as a single donation? Surely it would be much easier for charities to decide that, if two individuals have given a joint gift of, say, £240 in a financial year, it should be treated as two separate gifts of £120 so that they would never be eligible to return the donation under this clause.
In Clause 6(4), the donation does not have to be returned if, after the agreed actions are taken, the donor is not identified. It is quite common for charities not to be able to find their donors—the original donor may be deceased—so I completely support the intention of this subsection. However, is this where consideration should be given to the scale of gifts? Should charities perhaps be obliged to try to track down not just the donor but the next of kin or executors if the gift is of significant value and that value could be specified?
I move on to Clause 7, which also deals with failed fundraising appeals. Yes, fundraising appeals absolutely may fail, as per the illustration in the Explanatory Notes, or may exceed their targets—how wonderful. I am struck, however, by the fact that there is no mention anywhere in this clause of beneficiaries. The Bill states that funds should go towards purposes that are,
“so far as reasonably practicable, similar to the specific … purposes for which the money … was given”.
I also understand that trustees absolutely will want to ensure that decisions are
“effective in light of current social and economic circumstances”,
but it can be the case that beneficiaries are overlooked to ensure organisational sustainability. The duty of trustees to act in the charity’s best interests is not a direction to preserve the charity for its own sake, so I am keen that there are no grey areas on this matter, to the detriment of beneficiaries and purpose.
Turning to Part 3, I welcome the recognition of potential confusion about the working names of charities, as opposed to their formal names, and that these are being addressed. However, here, I am struck by the contrast between the regulatory regimes of England and Wales and those of Scotland and Northern Ireland. Charities in England and Wales have to register only if they have an income of more than £5,000 a year, although elsewhere all charities of any size are included on the charity register. This means that there may be more than 100,000 other organisations that are not on the Charity Commission’s register. How are these organisations to be covered by Part 3? Although I appreciate that the Charity Commission does not currently have the resources to deal with the additional burden, regulation and a register of all charities supports public trust and confidence. I cannot help but feel that the Bill is an opportunity missed on that front.
As your Lordships can imagine, with my Scottish charities’ focus I have scrutinised the Bill for any unintended consequences or adverse impacts on cross-border charities. The Minister will be pleased to hear that I have not spotted any, although I will be keeping a close eye on this as the Bill progresses. I am also aware that there are certain improvements in this legislation that could be beneficial to the sector in Scotland and which I hope the Scottish Government may wish to replicate, preferably sooner rather than later.
I look forward to continuing to scrutinise and support the Bill as it makes its way through the House. I commend its purpose to ensure the smooth running of our charitable sector.
Lord Bhatia (Non-Afl) [V]
My Lords, I welcome and support the Bill. The contributions of the noble Baroness, Lady Prashar, and the noble Lord, Lord Hodgson, were excellent. I have just one question for the Minister. Does she agree that the ethnic minority charity sector remains weak, and can she say whether the Government will provide special funding for that sector?
The Deputy Chairman of Committees (Baroness McIntosh of Hudnall) (Lab)
My Lords, the noble Baroness, Lady Gardner of Parkes, has withdrawn from the debate so I call the next speaker, the noble Lord, Lord Bilimoria.
Lord Bilimoria (CB) [V]
My Lords, on this Charities Bill, I declare my various interests as a trustee of charities, including the National Bereavement Partnership, the British Cardiac Research Trust and the Cobra Foundation. This Law Commission Bill makes a number of technical changes to charities law. The commission has said that
“uncertainties in the law and unnecessary regulation can disrupt charities’ activities, discourage participation and force charities to obtain expensive legal advice.”
These recommendations will simplify the regulation of charities and yet maintain the important safeguards for how they are run. The Government have welcomed the Law Commission’s report and recommendations; in fact, they accepted 36 out of 43 of those recommendations.
In its fantastic—as usual—briefing, the House of Lords Library summarised the changes as being
“to simplify the law around … changes to a charity’s governing documents … payments to trustees in certain circumstances for goods and services provided … using funds for ex gratia payments or using funds obtained in connection to specific fundraising campaigns for other purposes—
these are the cy-près powers that the noble Baroness, Lady Greengross, spoke of—
“utilising permanent endowments … and disposals of charity land.”
To put this into context, there are almost 170,000 registered charities in England and Wales, which now generate an income of approaching £100 billion. There are 700,000 individual trustees, and charities play a major role not just in society but in their huge contribution to our economy.
As the briefing explains, the Government have also acknowledged that charities legislation is
“commonly perceived as being complicated, uncertain and in places unduly burdensome”
and that this
“can disrupt a charity’s activities, discourage people from volunteering to become trustees and force charities to obtain”
legal advice, which is often expensive. The Government believe that this
“negatively effects the Charity Commission’s ability to regulate the sector.”
The Government have said that the changes will
“improve the efficiency of the sector, release more funds for use on charitable purposes rather than administration, and reduce unnecessary and overly bureaucratic regulation that not only increases the sector’s costs but also is a factor in discouraging people from volunteering to become trustees.”
The Law Commission highlighted the important balance between regulating charities and ensuring that they have the freedom to act in the best interests of their abilities and in the public interest. In a debate in May, the Minister, the noble Lord, Lord Wolfson of Tredegar, one of my university contemporaries, stressed the importance of protecting and regulating charities:
“Charities occupy a special place in our society, and the law should both protect and regulate them. The reforms that we introduce will remove or replace inappropriate and unnecessary burdens while safeguarding the public interest in ensuring that charities are properly run, so that charities will have more time and more resources to spend on their charitable objectives.”—[Official Report, 18/5/21; col. 471.]
The Minister, the noble Baroness, Lady Barran, said in response to the Law Commission’s recommendations:
“Ensuring that there is a modern, strong and flexible legal framework for charities is just one element of the Government’s work to create a more effective, sustainable and impactful charity sector. As the Secretary of State for Digital, Culture, Media and Sport commented in a recent speech, ‘there is huge power in civil society, and that it should be the government’s job to unlock it—not try to replace it, or end up stymying it.’ The Government will steward the sector, unlock new types of resources, from encouraging philanthropy”—
which I will come to—
“to leveraging finance, empowering volunteers to keep supporting their communities, and build a compelling picture of the enormous value that charities contribute to our economy and society.”
She could not have put it better.
Until June last year, I had the privilege for five years of chairing the advisory board of the Cambridge Judge Business School, one of the finest business schools in the world. While I was chairman I helped to found and establish the Centre for Strategic Philanthropy, based at the business school and the university, thanks to the benefaction of Badr Jafar, an alumnus of Cambridge University. The Centre for Strategic Philanthropy within the University of Cambridge Judge Business School is dedicated to enhancing the impact of strategic philanthropy both within and from global growth markets. Through a combination of rigorous research, executive education and the convening of diverse voices, the centre aims to become the leading hub of actionable knowledge to catalyse greater philanthropic impact from the world’s fastest-growing regions. It is headquartered in the UK at Cambridge, one of the finest universities in the world. The UK is seen as the headquarters of charities and charities expertise.
I quote Badr Jafar, the founding patron of the Centre for Strategic Philanthropy:
“Today, well over a trillion dollars of private philanthropic capital, more than triple the annual global development and humanitarian aid budgets combined, is deployed every single year. The evidence is also overwhelming that the world’s emerging economies are becoming an increasingly powerful source of philanthropic capital and social innovation. With the impending generational transition taking place around the world, now is the time to start building the cross-border networks that will empower the next generation of strategic philanthropists emerging from these markets, to question our own assumptions, and to facilitate the development of imaginative new solutions to some of the world’s greatest social and environmental challenges.”
This is huge. This is important not just for us here in the UK but globally.
Last year, at the beginning of the pandemic, I was privileged to become a trustee of the National Bereavement Partnership right from its beginning. It has carried out inspirational work throughout the pandemic. We have an inspirational CEO, Michaela Willis MBE. When I asked for her and our trust’s views on the Bill, she said that the National Bereavement Partnership believes that the Bill’s recommendations appear to be sensible, and that there has to be a certain amount of public scrutiny to keep the checks and balances in place regarding charity behaviour. We wholeheartedly agree that simplifying the law could apply to us. The charity’s governing documents need to be less laborious. Payments are made to trustees in certain circumstances for goods and services provided as, in some cases, that can be where the expertise and knowledge lie. It is a false economy to look for services elsewhere than might not be up to speed on the subject matter. The charity emphasises that it should be in certain circumstances, so it is practical.
Using funds for ex gratia payments is a particular barrier when it comes to volunteers and needs to be addressed. On specific fundraising campaigns for other purposes—the cy-près powers—it is important that there is project-specific funding, but it is not always the case that the piece of work concludes in the way it should or is planned to. In these cases, there should be the flexibility for funds to be transferred to a piece of work as close as possible to what they were donated for, within reason.
Charities provide a unique service. They are fundamental to society. They need to be regulated but also to be protected and cherished. Without them, much expertise would be lost. There must be a balance. Charities must be open, honest and accountable. Their accounts must be managed, audited and published for public scrutiny. On the flipside, charities need not be constrained by unnecessary legal burdens.
The National Bereavement Partnership has made a difference to the emotional well-being of callers—that is, the people who call in with very sad and tragic situations. It provides emotional support and therapeutic intervention, and is a conduit between other services, enabling long-term well-being. It adds value to NHS services, saving the Government money and keeping people out of the mental health system.
I conclude that the British charity sector is a jewel in the crown of our country. However, it is also a manifestation of the amazing spirit of benefaction among the British people. I will never forget my friend Sir Andrew Cahn once telling me something; he is the chair of WWF-UK, of which the Duke of Edinburgh was president for many years. Sir Andrew said that the WWF raises—well, the latest figure would be approaching £100 million a year. He said, “Did you know, Karan, that the vast majority of this money is not millions of pounds donated by big institutions and companies, but £10 and £20 in direct debits that individual citizens in this country donate, for animals in parts of the world where they will never go? They will never see those animals or meet the people who benefit from this charity”. That is the amazing British charitable spirit. It is that spirit that makes this country so amazing, and it makes our charities so incredible, amazing and phenomenal.
Baroness Hoey (Non-Afl)
My Lords, I refer to my declaration in the register of interests. I am the honorary president of a wonderful charity, the London Playing Fields Foundation.
There is clearly a huge amount of expertise in this Committee on charities and charitable law. I think we all recognise how charity lies at the heart of our society. No Government, however good, can ever do everything, so we need our charities. This has been evident during the pandemic, where charities have helped to alleviate the strain right across the country. Of course, we witnessed the contributions made so quickly and so hugely by the public to the heroic fundraising efforts for NHS charities made by the late Captain Sir Tom.
I welcome the changes being made, particularly as they will, I hope, help smaller charities, and the work that was done by the Law Commission report. I recognise that its report was built around the report done by the noble Lord, Lord Hodgson of Astley Abbotts. Having listened to his contribution earlier today, I can see why his report was supported so widely. I am not quite sure why it has taken nearly 10 years to begin to implement it, but I welcome it very much. I also welcome what he said about the situation at the Royal Albert Hall; I think that we have all heard and read about it, but he put it into context. I look forward to the Minister’s response to the question of why it has been left out of the Bill.
May I ask the Minister a couple of questions? Clause 24 and Schedule 1 apply in part to Northern Ireland and Scotland. I recognise that quite a lot of this will be taken forward by the Charity Commission for Northern Ireland, which is consulting at the moment, but can the Minister give us a little more detail on which part applies in part, if she understands my meaning?
The Minister mentioned the changes to remuneration to trustees and used the term “relatively small payments”. I share the concern expressed by the noble Baroness, Lady Rawlings, on payments to trustees. As the noble Baroness, Lady Goudie, said at the very beginning, when people give money to a charity they want to know and see what it is being used for. They want that transparency. I do not think most people who give small amounts to charities want to see it used to pay so-called volunteers—the trustees—and they do not want it spent on huge salaries for chief executives. We have seen some horrific salaries for chief executives, and the larger the charity, the larger the salary. Sometimes a smaller charity doing a lot of really good work in the same area can be completely squeezed out by these huge charities.
Public trust and confidence in our charities is still very high, but that can change. It is very important that all of us who care about the charitable sector speak out when we see some of these abuses that have happened because, in the long term, that will not give confidence to the public that the small amount—which is very hard earned, in many cases—that they give to something they care deeply about will actually be spent in the way that they thought it would be.
To mention Northern Ireland again, the recent Charity Commission for Northern Ireland trust and confidence survey demonstrated that 84% of people in Northern Ireland supported a charity in the previous six months. The Northern Ireland Council for Voluntary Action’s survey showed that 68% donated to charity. Of course, there is a difference between donating and supporting—in terms of being a volunteer—but I do not think any of those people want to see their money being spent on trustees. Trustees should do it because they want to donate their time, effort and expertise to a charity.
Finally, I hope that these provisions will reduce the regulatory pressure on trustees and reduce bureaucracy, making the governance of charities easier and perhaps making it less likely that they need to pay trustees. They should make it simpler and enable trustees to better get on with the job of helping their beneficiaries and maximising their impact, which is so important at this crucial time. Of course, we must not forget that none of these provisions should detract from adequate oversight of the Charity Commission. I hope the Bill will confer the right balance between the regulatory oversight and greater flexibility in charity administration with the associated reduction in administrative costs for charities.
Baroness Barker (LD)
I declare my interests as set out in the register. I preface my remarks by saying that it is a welcome return to see the Charity Commission doing what it alone can do—providing detailed expertise to charities to enable them to perform their functions to the best of their abilities—and getting away from its practice over the last three years of issuing generalised sweeping criticisms of the sector, which has done neither it nor the sector any good.
Before I turn to the details of the Bill, I am reminded that the last event I attended or hosted in your Lordships’ House last March, before Covid hit, was a reception for military charities. I was a rather unlikely stand-in for the noble Lord, Lord Dannatt, who was indisposed. I said to the people who asked me to take over at the last minute that it was possible that they could have found a Member of your Lordships’ House who was less like the noble Lord, Lord Dannatt, but I could not think of one right at that moment.
In preparation for that, I read a book that someone had given me by Peter Grant that details the development of philanthropy during the First World War. It is a great book, full of fascinating detail about newspaper appeals for socks and cigarettes to be sent to Belgium. They were gathered in mass amounts, and then bodies were left not knowing how to get them there without it costing a fortune. Fraudulent schemes were set up, as were duplicate schemes, all in the name of doing good for soldiers and for people displaced by the war. It is a very good and essential read for anybody interested in this area because it proves that, as the noble Lord, Lord Hodgson of Astley Abbotts, said, not a lot has changed in the charity world since 597, only the context in which things happen.
That is germane to the Bill. We are currently at a point when charities, which are regulated, whatever their form, and required under charity law to produce accounts and to be transparent about their support, find themselves up against entities that are called organisations but which may be nothing more than a couple of people with a Facebook page and crowdfunding. They have no accountability or transparency, yet the two are treated equally by the media and the general public. At some point, not in this Bill but in the next 10 years, we will have to return to the question of “What is a charity?” Perhaps that is something to which the noble Lord, Lord Hodgson of Astley Abbotts, might turn his considerable expertise.
In preparation for today’s debate I attempted to read Law Commission report 375—all 484 pages of it. Sadly it is no longer available in hard copy. I find that quite difficult, but I have done my best to get through it. It is important to go back to that source document, to read the Government’s response and then work through the Bill with the Explanatory Notes, because at each stage bits of detail emerge and get lost over time, which has led to this Bill. When we come to Committee we will have to be well informed about all the work at each stage so that we can consider the job before us, which is to determine how well the Law Commission has done what it said it was going to do, which was:
“To remove unnecessary regulation and bureaucracy”,
to ensure that appropriate regulation is in place,
“To increase the flexibility of trustees to make decisions in the best interests of their charities … To confer wider or additional powers on the Charity Commission … to increase its effectiveness … To ensure adequate protection of charity property”,
and
“To remove inconsistencies and complexities in the law”.
We need to do that because, in seeking to make the regime governing the regulation of charities somewhat more flexible, we risk handing the media extra sticks with which to beat charities. Some parts of our media have causes that they do not like and they are always willing to jump on a charity for any reason. We have to gauge whether this job has been done properly.
I welcome the proposals to make it easier and less cumbersome to change the governing documents of a charity. I have done that, and it is quite onerous. If we boil down the Law Commission’s proposals, it wants to enable charities to change not what they exist to do but the way in which they go about achieving what they exist to do. In that respect, those proposals are welcome. That said, there is a principle in all this that the more freedom charities have to make amendments to things such as their governing documents, the greater the onus on them should be to explain directly to the general public, in their annual reports, what they are doing and how they are doing it.
On the matter of payments of trustees for goods, the noble Lord, Lord Hodgson of Astley Abbots, set out a case for that in his report acceptably well. But I think it is necessary for there to be guidance for trustees on how they should use this power and on good practice, such as whether they should be doing things like getting good quotes or taking into account issues such as social value.
The powers of the commission to change the names of a charity, or establish who the trustees are, are quite a technical area, into which I would like us to take a deeper look, because it is not clear to me, from the Explanatory Notes, why the Charity Commission would be better placed to determine who was a trustee of a charity than the charity itself. Certainly, the power to challenge the registration of a charity’s name is important, but I would like to know from the Minister how members of the public or other charities could object to the registration of a new charity with a particular name, because, presumably, that is the trigger for action by the Charity Commission. It would be really helpful if the Minister could shed some more light on that.
People working in the field of charities have wanted cy-près schemes to be reformed for a long time. My own example is being approached by a bunch of trustees who had a small endowment, the purpose of which was to provide coal for the needy widows of a parish in Sussex. In the 1990s, they made the not unreasonable assessment that anybody who was using coal was probably cooking on an Aga and did not really need charitable help to get by, so they wanted to try and find a fuel property charity.
The noble Baroness, Lady Fraser of Craigmaddie, mentioned beneficiaries. I think it is implicit that beneficiaries are taken into account for any cy-près schemes, but she wanted to see that there were no grey areas. I am afraid there are nearly always grey areas in cy-près schemes, but the question is how the people making the decision explain and justify their treatment of those grey areas. It is good to see that there will be a quinquennial review of the amounts of money that are taken in.
I broadly welcome the process for updating some of the archaic processes for amending governing documents of statutory charities and royal charter bodies. My noble friend Lord Wallace of Saltaire cannot be here today, sadly, but he hopes to deal with that in more detail at future stages, especially with regard to large educational establishments. It is important to note that royal charter bodies cover a huge range of entities, from ancient educational charities through to organisations such as the National Citizen Service, which, frankly, should never have been given royal charter status in the first place.
One matter that I would like us, in Committee, to spend quite a considerable amount of time on is insolvency of trusts and insolvency of trustees of trusts. It is a very technical part of the Law Commission’s briefing, on which I think the noble Lord, Lord Hodgson of Astley Abbots, has much to tell us, particularly in relation to the sequencing of the insolvency and the impact that that has on creditors—creditors both of the trust and of the trustee. That is the kind of mind-bending detail that I think Members of your Lordships’ House were put in this place to deal with.
I agree with the noble Lord, Lord Hodgson, that we are under a particular obligation to deal with the two main recommendations of the Law Commission that the Government have rejected. On recommendation 40, in relation to the charity tribunal, infrastructure organisations within the charity sector wanted to support the Law Commission proposal that
“it should be possible to obtain authorisation to pursue ‘charity proceedings’ under section 115 of the Charities Act 2011 from either the court or the Charity Commission … where the Charity Commission would face an actual or apparent conflict of interests”.
The question of “conflict” for the Charity Commission is one that has been dodged, and we should return to that. The second recommendation relates to the role of the Attorney-General. The noble Lord, Lord Hodgson, set out the case on that matter in a way that was memorably clear. There is no need for me to reiterate it, but we should go back to that as well.
I have two minor points. I want to ask the Minister about the question of access to the governing document of a charity. I have spent a considerable amount of time looking at governing documents and going through the register of charities. The register of charities has been given a new format, and I believe that there is now a shortened version of the governing documents of charities on it, not the full document. Can she say what obligation there is on any charity to make its full governing document accessible to the public?
Finally, as this is a Law Commission Bill, can the noble Baroness assure us that, in Committee—which will not be in the usual format for our House but slightly different—we will be given time to go into matters of very great detail? These Bills come along once in a very long while; they deal with matters that are of immense importance to a very few people and require detailed and expert consideration. With due deference to the other House, it is for those of us in this House who have the expertise and the time to give to matters such as this, which may seem trivial to others, to do so. For that reason, I strongly commend to noble Lords that we rally behind the noble Lord, Lord Hodgson of Astley Abbotts, in asking that the issue that he raised about the Attorney-General be considered extensively before the Bill leaves this House.
I am very appreciative of all the work that has been done to get this Bill to this stage, and I very much look forward to working with Members of your Lordships’ House to take it through its further stages.
Lord Ponsonby of Shulbrede (Lab)
My Lords, I thank the Minister for introducing the Bill. This debate has demonstrated the great experience in this Committee. Before I get into my speech, I want to comment particularly on the two speeches by the noble Baronesses, Lady Fraser of Craigmaddie and Lady Greengross. The noble Baroness, Lady Fraser, is, I understand, the current serving chief executive of a charity, and the noble Baroness, Lady Greengross, was for many years chief executive of Age Concern. They both made different points, though similar in nature, about the detail of the rules. My wife was a charity CEO for 25 years, and I recognise the nature of those concerns and the detail of how you sort out the rules. It is the constant concern of CEOs, as I can attest, to make sure that the rules of charities are properly followed for the benefit of the interests of the organisation that they are running.
We in the Labour Party support this Bill. Charities are a force for good in our country. Millions of people regularly donate to them and support their primary objective: to help our fellow citizens. Some 170,000 charities in England and Wales are registered with the Charity Commission, with a combined annual income of around £74 billion. The purpose of this Bill is to address some of the nitty-gritty administrative issues that affect the running of charities. This will mean that more time and money can be spent on the charities’ primary purposes rather than burdensome administrative compliance. The Minister rightly made the point that this will be disproportionately beneficial to smaller charities.
From the Law Commission’s Eleventh Programme of Law Reform—including the initial review in 2012 by the noble Lord, Lord Hodgson—through to the most recent Law Commission reports, there has been extensive consultation and collaboration across the sector to arrive at today’s Bill. As the Library briefing states:
“The bill includes changes to simplify the law around … changes to a charity’s governing documents … payments to trustees in certain circumstances for goods and services … using funds for ex gratia payments or using funds obtained in connection to specific fundraising campaigns for other purposes … utilising permanent endowments; and disposals of charity land.”
The Law Commission’s recommendations were first published in 2017. The Government accepted most of the changes, many of which seemed technical in nature. However, as the briefing points out, the Law Commission highlighted a central point around
“the important balance between regulating charities and ensuring they have the freedom to act to the best of their abilities and in the public interest”.
At the all-Peers meeting kindly hosted by the Minister on 24 June, I made a point regarding responsible investments by charities that are in line with their purpose and values. I understand that two court cases exploring the definition of “responsible investment” are under way, and there is a draft guidance confirming that charities are free to adopt their own investment criteria. Since that date, I have received a helpful note from the Charity Commission confirming that it will put on hold the publication of its final guidance pending the outcome of those cases, that the law remains permissive in this area and that trustees can engage positively with responsible investment considerations should they choose to do so.
The noble Baroness, Lady Hayman, spoke to this point; my noble friend Lord Chandos challenged a number of the points that she made. I must say, this is an interesting debate that we will no doubt have again in future fora and future months, but I would be grateful if the Minister could confirm that this Bill will have no impact on the final guidance or the outcome of the court cases.
I have been fortunate enough to talk to two senior lawyers, Nicola Evans and Joe Coleman, who were intimately involved in the preparation of the Charity Law Association’s response to the consultation. They have given me some idea of the extent and breadth of the consultations undertaken. I raise two issues; they may be more suited to being raised in Committee, but I raise them here anyway. First, I understand that the Law Commission was not consulted on the extension of powers to stop the use of working names for a charity. This is a sensitive issue as it involves a clash of jurisdictions between intellectual property law, corporate law—as operated through Companies House—and the Charity Commission. I have heard that there is concern that this lack of consultation could lead to unforeseen circumstances. A second point that has been raised with me is on whether a surveyor’s report should be required when a charity sells land. It was felt that, given the huge range and size of charities, a single or simplistic rule would be inappropriate.
I understand that because of the nature of this Bill there are many detailed points and that some more contentious points are not part of this Bill. Nevertheless, I hope we can examine some of these detailed points as the Bill progresses through the special procedures for Law Commission Bills.
I highlight a couple of other points made by noble Lords during this debate. Both the noble Baroness, Lady Goudie, and the noble Lord, Lord Stevenson, raised the monitoring of borrowing by endowments. This is an important point and I would be interested to hear the Minister’s response on that.
I also thought that the idea that the noble Lord, Lord Naseby, had over breakfast this morning, of an equivalent of gift aid for the social care sector, was an interesting one, and I look forward to him developing that on future occasions.
Baroness Barran (Con)
My Lords, I thank all noble Lords for their valuable contributions today and, in particular, I congratulate the noble Baroness, Lady Barker, for having ploughed through the Law Commission report and all associated documentation. I had naively hoped I might be able to get through all your Lordships’ points in my closing speech, but I feel quite a long letter coming on. I will write to your Lordships about anything I cannot cover in the next 20 minutes.
My noble friend Lord Hodgson, and the noble Lords, Lord Ponsonby and Lord Stevenson of Balmacara, all highlighted the importance of effective implementation and the need, in the words of the noble Lord, Lord Ponsonby, to “sort out the rules” and make sure they are clear. This is a really valuable point. We will publish an implementation plan before the Bill completes its passage and aim to prioritise the implementation of provisions that will most benefit the sector. There will be need for new or updated guidance from the Charity Commission, which will need to change some of its systems and processes to support the new measures. The Charity Commission recognises the importance of clear and straightforward guidance for trustees, and I commend the new five-minute guides for trustees to any of your Lordships who have not seen them. They have proved extremely popular in the last year.
The Law Commission’s recommendations relating to expanding the range of advisers qualified to advise charities on land transactions and the matters to be reported on in such advice will require secondary legislation subject to the negative procedure, which DCMS will take forward in 2022. Similarly, the requirement to review various financial thresholds in the Charities Act 2011, with the view to increase them in line with inflation, will also be taken forward by the department in 2022, also via regulations subject to the negative procedure.
I will deal next with the recommendations from the Law Commission that the Government did not accept, starting with the one raised by my noble friends Lord Hodgson and Lady Rawlings, the noble Baroness, Lady Barker, and others in relation to the role of the Attorney-General in references to the charity tribunal. I understand that my noble friend Lord Hodgson is unhappy that the Government did not accept this recommendation. However, the Attorney-General has an important and valued role as protector of charities, and it would be wrong to change this as a result of a single complex case, as cited in the case of the Royal Albert Hall. To put this in context: references to the tribunal are rare; there have only been two since it was set up in 2009.
My noble friend Lord Naseby, the noble Baroness, Lady Barker, and my noble friend Lord Hodgson also referred to recommendation 40, which suggests that
“it should be possible to obtain authorisation to pursue ‘charity proceedings’ … from either the court or the Charity Commission in circumstances where”
there may be a conflict of interest on behalf of the Charity Commission. The existing arrangements protect charity assets by preventing charity funds being wasted on litigation that is without merit and ensure that disputes are dealt with in the appropriate forum. The Charity Commission is concerned that allowing applicants to seek authorisation from the court directly would significantly weaken these protections because the court would not be expressly obliged to consider whether the dispute could be resolved by the commission.
In the small number of cases where a conflict arises, it should be dealt with in a more proportionate manner that does not risk losing the protections discussed above. For example, the Charity Commission could institute robust information barriers and ensure that the case officers and legal advisers who consider the Section 115 application are not in any way involved in the substantive claim.
I welcome my noble friend Lady Fraser of Craigmaddie and all her expertise. I look forward to picking her brains and discussing many of the issues in this area. She and the noble Baroness, Lady Hoey, talked about the territorial extent of the Bill. In particular, the noble Baroness, Lady Hoey, asked about the extent of Clause 24 and Schedule 1. Clause 24 makes amendments to, and repeals sections of, the Universities and College Estates Act 1925, which applies to named institutions in England and has UK-wide extent. Schedule 1 makes the changes necessary to remove redundant references to that Act from other legislation. Some of the provisions that are amended by Schedule 1 also extend to Scotland or to the UK.
I turn to permanent endowments, which were raised by the noble Viscount, Lord Chandos, and a number of your Lordships. The reforms to permanent endowment in the Bill maintain the core principle of such an endowment: that it is intended to be preserved in the long term. However, the reforms aim to give trustees the flexibility to achieve that aim by looking across the portfolio as a whole, as I explained in my opening remarks. The noble Viscount questioned how this would work in practice; I think he probed the example given in the Explanatory Notes of 50% of a charity’s endowment being put into a social investment where there would be an anticipated loss.
There are a number of ways that this will work in practice. First, it is worth being clear that trustees can decide not to use the power if it is not appropriate for them. Secondly, they can review the distribution ratio in their grant-making if they feel that the overall return from the portfolio might be reduced in financial terms but that the social impact would be enhanced in line with their mission. They might also be able to offset modest losses by maintaining an existing investment policy or, potentially, take on higher risk in the portfolio. I know that your Lordships are aware that charitable foundations will take varying degrees of risk with their assets. I accept that one would have to have a very conservative existing investment policy for the 50% example to work out in real life without having to take on significant additional risk.
The noble Viscount asked why this provision was included in the Bill. It was at the request of the Association of Charitable Foundations. He also asked whether the Charity Commission would issue guidance that would include limits on the concentration of risk. The commission will consider the factors that trustees will need to have regard to in relation to their investments in this area.
The noble Baroness, Lady Goudie, asked about borrowing from a permanent endowment. Where charities borrow from their permanent endowment, they will have to report on their borrowing in accordance with their obligations under the statement of recommended practice. The Bill also includes provisions requiring the trustees to seek directions from the Charity Commission if they face difficulties repaying any borrowing. The noble Lord, Lord Ponsonby, also raised this.
My noble friend Lord Naseby asked whether there should be a fixed percentage that could be borrowed from a permanent endowment. I can confirm that the percentage is set out clearly in the Bill. Trustees can borrow up to 25% of the value of the fund, subject to a maximum repayment period of 20 years.
The noble Lord, Lord Stevenson of Balmacara, asked how these provisions would be monitored. He also asked about provisions relating to failed fundraising appeals. The department and the Charity Commission will do that monitoring. There is flexibility in the Bill to make changes by secondary legislation to financial thresholds to address any concerns.
Moving on from permanent endowments, the noble Baroness, Lady Goudie, asked about commercial fundraising partners. Several protections are already in place where charities engage with external commercial fundraising partners. They are designed to ensure transparency and were last updated in 2016.
The noble Baroness, Lady Hayman, and the noble Lord, Lord Ponsonby, asked about responsible investing. I can confirm that the Bill will have no impact on the Charity Commission’s guidance. It has been concerned with understanding how best to help charities invest responsibly. The consultation results are expected to be published later this summer. The commission is clear that trustees of all charities are free to decide whether to adopt responsible investment practices and trustees should have confidence that they can, under the current law, invest in a particular manner where they choose to do so.
The noble Baroness, Lady Hayman, asked about responsible investing and the role of the regulator in relation to net-zero obligations. Climate change is obviously a factor that trustees may take into consideration when investing. The law currently gives trustees broad discretion in this decision-making, but when trustees make decisions about responsible investing or any form of investing they need to balance the immediate and the longer-term needs of beneficiaries. The noble Baroness will be aware of things such as the UN principles for responsible investment, which have been adopted by many charitable foundations. They are creating quite a lot of information and helpful examples for trustees.
My noble friend Lady Fraser asked for examples relating to Clause 6. The Bill requires trustees to identify the donor, as my noble friend explained, which could be a single person or a group of people. There are cases in law where multiple people are treated as one person—for example, a husband and wife can together be a single tenant under a lease. The Bill also requires the donation to be identified, and whether that includes or excludes fees will depend on the individual circumstances of the case. There is also flexibility to decide what steps should be taken to trace donors, so that could include additional steps to track down donors of large gifts. The requirement is “reasonable” steps, and that needs to be agreed with the Charity Commission.
The noble Baroness, Lady Greengross, made a good point about the need for checks and balances, particularly for fundraising appeals. However, the current law requires charities to contact donors to offer to return their donation. This can sometimes be disproportionate to the size of the individual donations. I hope she agrees that this change protects donors’ wishes while reducing administrative burdens.
The noble Lord, Lord Stevenson, asked for an example of how the ex gratia elements in the Bill would work in practice. For example, it could be that a testator has left money to a charity in their will and gave their solicitor instructions to leave some of the money to a family member instead, but died before the will was changed. Legally, the charity could and must take the money, but morally it might wish to make a payment to the family member.
The noble Baroness, Lady Prashar, and the noble Lord, Lord Stevenson, asked about sufficient resources and powers for the Charity Commission. Parliament strengthened the commission’s powers in the Charities (Protection and Social Investment) Act 2016. We published our review of that Act in March last year, which concluded that the powers were being used proportionately and effectively. The Charity Commission received additional funding in 2018 and in its 2019 and 2020 spending review settlements to reflect its increased caseload.
My noble friend Lady Rawlings, the noble Baroness, Lady Hoey, and I think the noble Lord, Lord Bilimoria, agreed with these principles about the importance of transparency. My noble friend Lady Rawlings also made important remarks about levels of executive remuneration. If I may, I will deal with those first. We recognise that executive remuneration in charities remains a public concern. The Government’s position is that charities should be transparent about executive remuneration so that members of the public can decide whether they want to support a charity. Currently, registered charities, apart from the very smallest, are legally required to provide details of the number of staff in pay bands over £60,000 in their annual return. This is now available on the Charity Commission’s register of charities, which is also available online. Some charities go further and publish full details of executive remuneration as a matter of good practice, following advice from the NCVO.
My noble friend raised issues about overheads and administration costs. I think some of the wider issues around transparency relate to the fact that we use “charity” to cover organisations made up only of volunteers with an income of just a few thousand pounds—or maybe even a few hundred pounds—a year, and we use the same term for charities that spend hundreds of millions of pounds a year and are, for example, important delivery partners to government and local government. In some ways it is unhelpful that we do that.
However, I say to my noble friend and the noble Baroness, Lady Hoey, that some of the requirements for administration costs relate to requirements put on charities by their funders. I hold my hand up and put central and local government in that in terms of requirements for accountability and regulation to relation to safeguarding, but I take the points made by both noble Baronesses.
There were a number of other points, which I may need to cover in writing. The noble Lord, Lord Bhatia, asked whether I agreed that charities led by people from black and other minority communities are weak. I think he is right that many of those organisations have historically struggled to access funding. As part of the community match challenge, which my department did with a number of philanthropists and foundations, charities led by people of colour and other minority communities were prioritised in a number of funding streams. We are looking forward to hearing how that worked in practice.
My noble friends Lord Hodgson and Lady Rawlings and the noble Lord, Lord Stevenson, asked me to clarify whether we would be returning to some issues in Committee. I remind your Lordships that, as a Law Commission Bill and with agreement from the usual channels because of its uncontroversial nature, the Bill follows the Special Public Bill Committee procedure. Amendments can therefore be proposed but the Government would resist any amendment that is not directly related to implementing the Law Commission’s recommendations. I genuinely welcome debate on issues covered in the Bill and any other issues that noble Lords wish to raise, and I would be delighted to meet any noble Lord separately to discuss issues which are outside the scope of the Law Commission’s recommendations.
As ever, I am out of time. In closing, I reiterate the purpose of the Bill: that the time and money spent by charities to unpick unduly burdensome and arbitrary processes should instead be channelled into their valuable work. We have a duty to shape legislation to work for those delivering such vital work, especially in unprecedented times when charities have been working tirelessly to help those in need. Many noble Lords have rightly celebrated the role that charities have played during the pandemic, and I echo their sentiments. I look forward to further detailed discussion on the Bill and the important changes it will bring that are much anticipated by the charities sector.
House of Lords
Oaths and Affirmations
Arrangement of Business
The Lord Speaker (Lord McFall of Alcluith)
My Lords, the Hybrid Sitting of the House will now begin. Some Members are here in the Chamber, while 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.
Police: Body-worn Videos
(3 years, 5 months ago)
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Lord Harris of Haringey
To ask Her Majesty’s Government what progress they have made on enabling the police to release material from body-worn videos in a timely fashion following an incident.
Lord Harris of Haringey (Lab)
My Lords, I refer to my policing interests as declared in the register and beg leave to ask the Question standing in my name on the Order Paper.
The Minister of State, Home Office (Baroness Williams of Trafford) (Con)
My Lords, the release of material from body-worn videos is a matter for police forces. To assist the police in taking decisions on the release of such material, the National Police Chiefs’ Council issued advice to forces in November last year. The Government support the police taking a proactive approach to considering the release of body-worn video to increase transparency, build public confidence and correct misleading information that circulates online.
Lord Harris of Haringey (Lab)
My Lords, I am grateful to the noble Baroness for that response. She said that the Government want police forces to be “proactive”, but the reality is that it is the work of a moment for a very partial video of a particular incident to be circulated widely on social media, yet it takes a very long time for police to release their version of events on the basis of body-worn video. That undermines confidence in the police and allows on occasions false rumours to circulate. How proactive does the Minister expect police forces to be, and does she agree that such material should be made available within 24 hours rather than in the rather long term, as happens at the moment?
Baroness Williams of Trafford (Con)
I totally agree with the noble Lord that space between online circulation of video and the police reactively putting the video online creates a vacuum for speculation and can undermine the criminal justice process, so I think speed is of the essence. For that reason, I am very grateful to the noble Lord for asking the Question.
Baroness Sanderson of Welton (Con)
My Lords, on a separate but related issue, in her HMIC report, Wendy Williams recommended that all forces should record the entirety of all stop and search encounters by September of this year and that external scrutiny panels should have access to that footage. As the use of stop and search has increased, public confidence in the process is more important than ever. Can my noble friend the Minister confirm whether police forces across the country intend to implement these recommendations?
Baroness Williams of Trafford (Con)
I thank my noble friend for that question. As always, Wendy Williams’ report has come up with some very insightful recommendations. My noble friend will know that the use of body-worn video during stop and search is an operational decision for forces. The Home Office supports it as a tool for increasing transparency and accountability. My right honourable friend the Home Secretary reinforced that in her speech to the Police Federation conference early last month when she said that the Home Office would be
“looking carefully at strengthening the system of local community scrutiny and the value of body-worn video, because transparency”,
as the noble Lord, Lord Harris of Haringey, said, “is vital.”
Baroness Lawrence of Clarendon (Lab)
My Lords, following on from the question of my noble friend Lord Harris, why is it difficult for the police to get their evidence to court, and why is it a slow process? Is there a technical reason for the slowness in releasing material from body-worn camera data? Can the Minister update the House on this?
Baroness Williams of Trafford (Con)
Again, that is a pertinent point. Clearly, every case is different. Police getting evidence to court may well be undermined by material that has been released online beforehand, which may undermine the criminal justice system. A number of factors have to be considered when police are getting evidence to court, but I go back to the point made by the noble Lord, Lord Harris of Haringey: speed is clearly of the essence not only in seeking out justice but in improving public confidence and scrutiny of these issues.
Lord Davies of Gower (Con)
My Lords, does my noble friend the Minister agree that early release of material from body-worn videos would play a major role in preventing certain sections of the media and, indeed, politicians of a particular mindset, from jumping in too soon and criticising police action where they have acted appropriately? I cite the Clapham Common vigil as a first-class example.
Baroness Williams of Trafford (Con)
My noble friend is right that selective release of video can paint a very different picture from what actually happened. This point has been made again and again. It is absolutely right that these things be released quickly and brought forward in a way that does not undermine the criminal justice system that ensues.
Lord Paddick (LD) [V]
My Lords, if there is any possibility of misconduct proceedings or a prosecution, whether of the police officer or of those interacting with the officer, witness evidence, perhaps from a different angle or from before the camera starts to record, may be important. Witnesses may be influenced by the body-worn video footage as well as online footage, rather than by what they saw. What safeguards are needed to ensure that both body-worn video and online video do not interfere with the course of justice?
Baroness Williams of Trafford (Con)
I think the noble Lord points to the fact that the police need to make decisions about what happened before the video was started, after the video was started and what might be put online. These are all factors that might undermine a criminal justice process, and I very much agree with his points.
Lord Coaker (Lab)
Everyone accepts the need for police accountability, but surely there is a need to redress the balance as more and more cases occur of police officers being vilified on social media following selective clips of their interaction with the public. However, given that the Minister has just said that this is a matter for police forces, and that the Government accept it is a real problem, how are they going to get this changed for the better?
Baroness Williams of Trafford (Con)
Body-worn video is an incredibly useful tool for the police, not only to bring criminals to justice, ultimately, but to protect the police against accusations regarding how they treat potential criminals. That latter factor is very important. Clearly, we make policy decisions and the police implement them. They are operationally independent of us and it is for them to issue those decisions. Of course, the National Police Chiefs Council’s advice on the whole framework of their use is very important.
Baroness Gardner of Parkes (Con) [V]
My Lords, given the success of body-worn cameras in helping to de-escalate matters and providing evidence where a crime has been committed, does the Minister think that the time has come for all police officers to wear body-worn cameras?
Baroness Williams of Trafford (Con)
My noble friend makes a good point, but we have to be careful here. The use of body-worn video has to be lawful, necessary and proportionate, and I think that is why the call for its use in stop and search has been made. Its use generally has to be incident specific. I take the point that my noble friend makes, but it is probably not useful or advisable in all circumstances.
Baroness Jones of Moulsecoomb (GP)
According to a recent report, some videos showed that police officers were poor at communicating and lacked patience and de-escalation skills. Is it possible that the pressure on the police from 11 years of swingeing Tory cuts to their budgets and numbers is responsible for that sort of pressure? Their numbers are still not back to pre-Conservative Government levels of 11 years ago.
Baroness Williams of Trafford (Con)
I do not agree with the noble Baroness, she will not be surprised to know. She can surely acknowledge that our efforts to enlist an extra 20,000 police officers are all to the good in fighting crime.
Lord Foulkes of Cumnock (Lab Co-op)
Is the Minister aware that Police Scotland started a trial of body-worn video on 1 June? Will she ensure that the experience in England is passed on to Police Scotland?
Baroness Williams of Trafford (Con)
Indeed; our relationship with the devolved authorities is always one of learning from each other and passing on examples of good practice.
The Lord Speaker (Lord McFall of Alcluith)
My Lords, the time allowed for this Question has elapsed and we now come to the second Oral Question.
Palestine
(3 years, 5 months ago)
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Lord Campbell of Pittenweem
To ask Her Majesty’s Government what plans they have to recognise Palestine as a state.
The Minister of State, Foreign, Commonwealth and Development Office (Lord Ahmad of Wimbledon) (Con) [V]
My Lords, the United Kingdom will recognise a Palestinian state at a time when it best serves the objective of peace, as we have stated before. We of course continue to encourage progress towards a negotiated settlement between the parties, and my right honourable friend the Foreign Secretary reinforced that position during his visit to both Israel and the Occupied Palestinian Territories from 25 to 26 May.
Lord Campbell of Pittenweem (LD)
My Lords, if for this Government recognition of Palestine requires a peaceful solution, do they now accept that every rocket fired from Gaza into Israel and every additional illegal settlement on the West Bank undermines the government policy of a two-state solution? Are the Government content to allow their own policy to wither on the vine and hence provide an obstacle to the recognition of Palestine, or are they now willing to step up to their historical and moral obligations, not only to the Israelis but to the Palestinians?
Lord Ahmad of Wimbledon (Con) [V]
My Lords, I assure the noble Lord that we remain very much committed to a two-state solution: a secure and safe Israel and a safe and secure and viable Palestinian state. I am sure the noble Lord acknowledges that bilateral recognition will not end occupation, but we remain very much committed to engagement. That is why my right honourable friend the Foreign Secretary in his most recent visit after the current conflict—[Inaudible.]
The Lord Bishop of Ely
With little prospect of negotiations resuming, will the Minister accept that the continued settlement building programme amounts to an incremental and de facto annexation of the West Bank? The international community needs to promote the rights of all Palestinians, including the Christian community. Does the Minister agree that a strong endorsement of Palestinian aspirations by the Government would demonstrate to the Palestinian public the possibility of international political process and show that Her Majesty’s Government are committed to active peacemaking rather than merely to conflict management?
Lord Ahmad of Wimbledon (Con) [V]
My Lords, I agree that it is important that we restate and re-emphasise the importance of the two-state solution. On the issue of the OPTs, we remain committed to ensuring that we lead towards a process which leads to an independent and viable Palestinian state. I also endorse the right reverend Prelate’s point about the different communities within the Holy Land; of course, the Arab Christian community is an important voice in the peace process.
Lord Grade of Yarmouth (Con) [V]
Does the Minister agree that our Government cannot consider recognising a territory while it is controlled by proscribed terrorists whose only stated purpose is to wipe their neighbour Israel off the face of the earth, no matter what the cost to their own people?
Lord Ahmad of Wimbledon (Con) [V]
My noble friend refers of course to the situation in Gaza and the role of Hamas. We do not engage with Hamas, and I agree with my noble friend that for anyone to come to the table it is important that they recognise the other party’s right to exist. Hamas does not, and if it wants to be a party to peace, it needs to ensure that that recognition is extended.
Baroness Meacher (CB)
My Lords, the UK certainly should recognise Palestine as a state, but as important is the need to introduce economic incentives to induce Israel to end its illegal building of settlements on Palestinian land. Are the Government giving consideration to such economic incentives with our western allies and, if not, will the Minister raise this issue with his colleagues?
Lord Ahmad of Wimbledon (Con) [V]
My Lords, on the issue of economic incentives, we believe that it is important that we progress our economic relationship with both Israel and the Palestinian Territories. We do not hesitate to express our disagreement with Israel whenever necessary. However, on the specific issue of sanctions against the State of Israel, which the noble Baroness may be alluding to, we stand very firmly opposed to such boycotts or sanctions.
Baroness Blower (Lab)
I refer your Lordships to my interests as recorded in the register. Recognition of the state of Palestine is an internationally significant concern. I would like to ask the Minister today about an urgent concern. What representations have Her Majesty’s Government made to the Government of Israel about the house evictions and demolitions in Sheikh Jarrah and Silwan, which appear designed to change the demography of the holy city?
Lord Ahmad of Wimbledon (Con) [V]
My Lords, I agree with the noble Baroness and we have been very clear on our position on the evictions in Sheikh Jarrah. It is a threat to the communities currently in Sheikh Jarrah and we urge the Government of Israel to cease such actions permanently. Indeed, these points were very much raised and discussed during my right honourable friend’s visit to Israel and the OPTs.
Baroness Northover (LD)
Is the noble Lord aware that this morning, Israeli forces demolished more structures in the Jordan Valley? Does he agree that that the time really has come to move beyond that old phrase that he has used once again and to recognise Palestine, and that this must be for a viable, sovereign and independent state and not a splintered, semi-sovereign version, as, for example, in the Trump plan?
Lord Ahmad of Wimbledon (Con) [V]
My Lords, on the Trump plan, as I have said before in your Lordships’ House, that was a first step. However, I totally recognise the picture that the noble Baroness paints and we agree as a Government that we must have a viable, functioning Palestinian state. On the important issue of the demolitions, we have made our position absolutely clear to the Israeli authorities. They should not be taking place. The settlements in the OPTs are illegal and they, and indeed the evictions, go against international humanitarian law.
Lord Polak (Con)
I refer the House to my interest as president of Conservative Friends of Israel, as set out in the register. It seems that some noble Lords are failing to experience and comprehend the winds of change in the region: the Abraham Accords, and a NATO drill this week which included Egypt, Morocco, Tunisia and the UAE, alongside Israel. Does the Minister agree that the most helpful contribution towards peace and prosperity would be for noble Lords to use their influence with the Palestinians to urge them to sit around the table with the Israelis and create that peace and prosperity?
Lord Ahmad of Wimbledon (Con) [V]
My Lords, I agree with my noble friend; I think we all welcome the important progress made with the Abraham Accords, and we pay tribute to all those who have come forward. However, it is also important, as my noble friend rightly articulates, that there can be no solution to the challenges and the conflicts in the region until we see meaningful progress on the peace talks. For that to occur, Israel and the Palestinian Authority need to sit down and agree a way forward and progress. We all desire peace in the Holy Land, and the talks between those two sides are essential to make that happen.
Lord Collins of Highbury (Lab)
My Lords, the Opposition share the Government’s commitment to the two-state solution, and with the new Administrations in the US and Israel, there are opportunities. Can the Minister tell us what steps the Government are taking to help address the drivers of insecurity and injustice in the region, especially if they will not accept the recognition of Palestine?
Lord Ahmad of Wimbledon (Con) [V]
My Lords, we continue to work with key partners, including the US, which is of course very important for progress. We continue to engage with both sides, as I have articulated, but, equally, we are supporting efforts such as the work being done with UNRWA in supporting education and skills in the Palestinian Territories. It is important that we continue in that respect to provide hope for the future and the basis of a future independent and viable Palestinian state.
Baroness Deech (CB) [V]
Does the Minister agree with the opinion of our two most distinguished international lawyers, the late James Crawford and Professor Malcolm Shaw, in whose opinion Palestine is not a state under international law because it does not begin to conform to the criteria set out in the Montevideo convention? It does not have the right requirements to be a functioning lawful state.
Lord Ahmad of Wimbledon (Con) [V]
The Government’s position is very clear. We believe that the best and the only way to ensure peace in the region is to have two states side by side, and a Palestinian state must be viable. We continue to invest our efforts in making that issue a reality but, ultimately, it needs both sides to sit down and begin the negotiations so that we can see those two states living side by side in peace.
The Lord Speaker (Lord McFall of Alcluith)
My Lords, the time allowed for this Question has elapsed. We now come to the third Oral Question.
Private Sector: Environment and COP 26
(3 years, 5 months ago)
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The Parliamentary Under-Secretary of State, Department for Business, Energy and Industrial Strategy (Lord Callanan) (Con)
My Lords, we are calling on companies to commit to cut emissions via the UN’s Race To Zero campaign, to join in submitting near-term plans plus, by 2050, a net-zero goal for independent verification. The UK will also be the first G20 country to require mandatory TCFD-aligned discourses, and we have secured similar commitments from the G7. These initiatives show, among other things, how global businesses are going green and leading the way to a low-carbon future.
Lord Bird (CB)
The private sector was very useful when it came to the AstraZeneca vaccine, and the Government were incredibly thoughtful and rushed forward to support that company; it was a good example. However, the four objectives are a bit aspirational at the moment, so we need to push forward the way in which the Government can get the private sector on their side. May I suggest that they look again at some examples such as contracts for difference, which was about giving guarantees to start-ups and new businesses in the private sector in order to push forward? In that way, we can have the same response in the private sector for the environment as we got with AstraZeneca.
Lord Callanan (Con)
The noble Lord will I am sure be delighted to hear that we are launching a new contracts for difference round in December.
Lord McConnell of Glenscorrodale (Lab)
My Lords, the best multinational companies have actually been ahead of the Government in relation to the sustainable development goals. Therefore, I wonder whether the Build Back Better World initiative announced at the G7 summit recently by the Prime Minister will actively engage multinational companies in delivering the sustainable development goals, and will the UK have a key role in taking forward this initiative after leading the G7 in Cornwall last month?
Lord Callanan (Con)
The noble Lord makes a very good point, and indeed we will. Already, 40 of the UK’s leading companies have joined the net-zero challenge and, as he will be aware, as part of the 10-point plan, the Government have invested over £12 billion to stimulate a green industrial revolution in the UK supporting up to 250,000 jobs.
Lord Jones of Cheltenham (LD) [V]
What help are the Government planning to give the construction industry to build carbon-neutral homes?
Lord Callanan (Con)
The industrial strategy challenge fund has 10 challenges, and one of these, as the noble Lord will be aware, is the transforming construction fund, with £170 million of public funding and £250 million of private funding, providing safer, healthier and more affordable buildings that use dramatically less energy.
Baroness Bottomley of Nettlestone (Con)
Building on the role of enlightened international businesses and with the exciting international leadership offered by COP 26, will my noble friend ensure that the magnificent Siemens wind turbine blade factory and Green Port Hull have the opportunity to showcase the pivotal role of the private sector in enabling all operations to move to a net-zero future? I declare my interest as chancellor of the university and sheriff of the city.
Lord Callanan (Con)
My noble friend makes a very good point. She will have seen the announcement that we made only this morning on additional investment in wind turbine infrastructure in the Humber and the Tees. We will of course showcase the excellent efforts of these companies.
Baroness Hayman (CB)
My Lords, given the enthusiasm that the Minister has expressed for the work being done and the fact that many companies are making great progress in this area, do the Government support the Better Business Act campaign business leaders who are calling for the amendment of Section 172 of the Companies Act to remove shareholder privacy provisions so that companies are legally obliged to operate in a manner that benefits all stakeholders. Do the Government have plans to review the UK’s corporate governance code to ensure that it is in line with our net-zero-by-2050 target?
Lord Callanan (Con)
The noble Baroness makes a good point. We keep all these matters under constant review. We are constantly looking at the corporate governance code and we are reforming audit and corporate governance at the moment. We will be announcing some plans when the consultation has closed.
Lord Grantchester (Lab)
In June, the Government announced that Microsoft would join SSE, Scottish Power, NatWest Group, National Grid, Sky, Sainsbury’s, Hitachi, Reckitt and GSK as principal partners for COP 26. Can the Minister explain the Government’s criteria for appointing the principal partners? Does this mean that they consider these companies to have clear plans for achieving net zero which are being implemented with a company-determined contribution?
Lord Callanan (Con)
All companies that take part in COP 26 will have joined our race to net-zero initiative. As I mentioned in response to the noble Lord, Lord McConnell, 40 of the FTSE 100 companies have already joined it and we hope that more will follow.
Baroness Walmsley (LD) [V]
My Lords, can the Minister get all the companies that run public electric car chargers together in one room and force them to simplify and standardise their access and payment technologies? I ask because if anyone wants to drive an EV to Glasgow for the COP 26, they will need a phone full of apps, a handful of cards and nerves of steel in case the charger that they urgently need is either occupied or broken.
Lord Callanan (Con)
I think that the House has some sympathy with the points made by the noble Baroness. She will be delighted to hear that the Competition and Markets Authority is carrying out a market study into electric vehicle charging in the UK, considering two broad themes: how to develop a competitive sector and attract private investment, and how to ensure that people using EV charge points have confidence that they can get the best out of the service. I am sure that the noble Baroness will want to contribute to that study.
Baroness Blackwood of North Oxford (Con)
My Lords, I pay tribute to the work of the late Sir Roger Gifford, an exceptional leader in the City and on the green finance taskforce. A key output of the latter was the Green Finance Education Charter, a critical step for embedding vital skills for accurately assessing climate-related risks and opportunities in business, finance, and professional services. As set out in the Green Finance Strategy, the charter forms an important part of the Government’s path to COP 26. Can the Minister recommit to the programme of work today that is set out in that, and will he ensure that it delivers on its full potential ahead of COP 26?
Lord Callanan (Con)
I am very happy to join my noble friend in recommitting to that. Sir Roger was an inspiring champion for using finance as a force for good in tackling climate change and improving the environment. All of us in government will remember his work.
Lord Sarfraz (Con)
My Lords, the increased attention given to climate change in boardrooms is largely being driven by investor sentiment. Last year, over 100 new environmental, social and governance funds were launched in Europe alone. ESG funds happen to be performing exceptionally well, demonstrating that ethical investing is profitable investing. Can my noble friend send a clear message to ESG investors today that the Government recognise their efforts, that they are welcome and that they will be supported?
Lord Callanan (Con)
I agree with the points made by my noble friend. The Government’s ambition is for the UK to be the best place in the world for green and sustainable investment. ESG funds are a crucial part of this. The Chancellor used his Mansion House speech on 1 July to announce a set of ambitious new policies to drive forward this important agenda.
Baroness Prashar (CB)
My Lords, I refer to my interests as set out in the register. Can the Minister tell the House what steps the Government are taking to deliver decarbonisation of the existing housing stock and how they are supporting the delivery of the pipeline of skills required to undertake this work?
Lord Callanan (Con)
The Government are making substantial progress in this area. The noble Baroness will be aware that we will be publishing our heat building strategy shortly, which will help to set out this path. We are already doing a lot through a number of targeted investments, through the local authority delivery fund and the social housing decarbonisation fund, to help those on the lowest incomes to decarbonise their houses and properties.
Lord Flight (Con)
How has the Minister’s department, BEIS, helped to support this transition while also fostering innovation by business at all times and at all levels?
Lord Callanan (Con)
My noble friend is very keen on innovation. I am delighted to tell him that, as part of BEIS’s £505 million energy innovation portfolio and our £10 million Industrial Energy Efficiency Accelerator programme, we have provided grant funding for technology developers—industrial sites to install, test and prove innovative equipment that could help to reduce energy consumption and greenhouse gas emissions. We have also boosted access for SMEs to energy efficiency innovation competition and provided £6 million to fund the development of innovative market solutions that can provide businesses with tailored energy efficiency advice.
The Lord Speaker (Lord McFall of Alcluith)
My Lords, all supplementary questions have been asked and we move to the next Question.
Lorry Drivers
(3 years, 5 months ago)
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Baroness McIntosh of Pickering
To ask Her Majesty’s Government what assessment they have made of the shortage of lorry drivers; and what steps they are taking to address the situation.
Baroness McIntosh of Pickering (Con)
I beg leave to ask the Question standing in my name on the Order Paper and refer to my interests on the register.
The Parliamentary Under-Secretary of State, Department for Transport (Baroness Vere of Norbiton) (Con)
My Lords, the Government hold regular meetings with the road haulage industry regarding driver shortages and the impact on supply chains. On 16 June, I hosted an industry round table, alongside the Employment Minister. We are supporting HGV driver training through apprenticeships and training for jobseekers, and encouraging drivers who need to renew their driver’s certificate of professional competence to return to the sector.
Baroness McIntosh of Pickering (Con)
I welcome the government action. Brexit and Covid combined have, in part, led to the crisis that we face, as well as the closure of test centres during the Covid pandemic last year, preventing training of new drivers. The industry is stepping up to the plate by agreeing to pay drivers more. Will the Government look very carefully at encouraging women drivers to take up lorry driving, and at adding HGV drivers to the UK skills shortage list, as well as trying to provide even more training, test centres and the reissuing of licences?
Baroness Vere of Norbiton (Con)
If my noble friend does not mind, I shall focus on the first of those questions. First, I welcome any more pay for professional drivers, because they do an outstanding job. I recognise what my noble friend says about diversity. It is a very white, male sector. There are huge opportunities for the sector to diversify and, when it comes up with plans to do so—for example, Logistics UK’s Year of Logistics, which I hope we will get under way soon—I will be very happy to support them.
Baroness Quin (Lab) [V]
My Lords, perhaps I may pick up on the second part of the question of the noble Baroness, Lady McIntosh, and ask about adding lorry drivers to the post-Brexit skilled occupation list. I also ask for a period of not just six months but 18 months, which is what I understand the industry wants, in order to be able to attract, recruit and train new British drivers.
Baroness Vere of Norbiton (Con)
The industry needs to do an awful lot more to recruit, train and retain its staff, and perhaps I will be able to get into that a little later, but on foreign labour, the UK labour market has changed dramatically due to the pandemic. Many UK workers face an uncertain future. There will be employment opportunities within the professional driving sector, and I hope that they will apply for them.
Baroness Foster of Oxton (Con)
My Lords, lorry drivers have been the hidden heroes of this pandemic and they deserve our full support. Does my noble friend the Minister agree that such jobs require good skills, training and investment, and are equally important to driving our economy forward as any university degree?
Baroness Vere of Norbiton (Con)
I agree that they have been some of the heroes during the pandemic, and ensure that I frequently tell them so. I think they have done a fantastic job, but it is time for the industry to step up just a little more. On 1 August last year, we suspended the HGV levy. This has saved the industry hundreds of millions of pounds. For each truck, it costs about £900 a year, so if you are a haulier with 3,000 trucks, you save £2.5 million. That could train 800 new drivers. I ask the industry to recruit those people and train them.
Lord Rosser (Lab) [V]
Finding effective solutions means first identifying the cause. Driver and other staff shortage problems could lead to higher food prices. I get the impression from the Minister’s answers that the Government do not accept any responsibility for the present situation, but may I seek clarification on that? Do the Government think that the staff shortage problems are due to the end of free movement and the way they are now implementing border controls, or due to the effect of repeated Covid lockdowns, or do the Government think they have no responsibility and that the staff shortages are due to low pay and poor terms and conditions of employment, inadequate manpower planning or a failure by the industry to invest in proper training programmes to meet future manpower needs?
Baroness Vere of Norbiton (Con)
All of the above; those are the issues we are facing. I have been Roads Minister now for two years, and I had this conversation with the haulage sector two years ago. It was very clear then that foreign labour would not be available to it. It has known that this was coming down the track. The TSC issued a report in 2016, pointing out exactly what the sector needed to do to address the shortage it had then, and yet still not enough has been done. I would accept that the Government stand ready to help. We have listened to the industry and work alongside the it. For example, on HGV testing, I have doubled the number of tests every week from the pre-Covid level. We are doing everything we can, and we need the industry to work in partnership with us.
Lord Purvis of Tweed (LD)
To ensure that goods kept flowing into the United Kingdom after the end of the transition period, the Government recognised that there was a shortage in the capacity in our ports, so they deferred checks for hauliers. Why are they not deferring the Immigration Rules changes for hauliers, to ensure that they are able to bring goods into this country properly?
Baroness Vere of Norbiton (Con)
Hauliers are able to bring goods into this country properly. The issue is that there is a driver shortage in the UK market. There is also a shortage in the EU market, actually, and in many economies. I can announce to your Lordships’ House today that I have just temporarily extended drivers’ hours. I accept that that is definitely not a long-term solution: we must ensure that drivers’ safety is not compromised, and operators must notify the DfT.
Lord McLoughlin (Con)
The announcement my noble friend just made will be very welcome to the industry. Speaking to people in the industry, they say that they are facing the biggest crisis that they can recall in driver recruitment. Will the Government consider temporarily lifting the CPC regulations and the need for them for domestic drivers, now we are no longer in the European Union?
Baroness Vere of Norbiton (Con)
I thank my noble friend for his question. I have looked very carefully at driver CPC. It is my opinion that we need to put the “professional” back into professional driving. Driver CPC is a really good way to ensure ongoing training for the profession. It is one day a year, which I think is about the right amount of training. It ensures that they are up to date and maintain their skills and knowledge of the roads. The Government have funding available to support those who have a C+E licence who need to get their driver CPC, so there is a way for people to upgrade their qualification.
Lord Bilimoria (CB) [V]
My Lords, as president of the CBI, I know that employers are facing the perfect storm of staff shortages as the economy reopens. First, does the Minister agree that the Government should immediately update the immigration shortage occupation list, as well as helping workers to gain skills? Secondly, does the Minister agree that, with cases projected to rise to up to 100,000 a day, instead of waiting until 16 August, from 19 July, instead of people having to isolate after coming into contact with a Covid-positive individual, we should have a test and release system, including using lateral flow tests, which will allow people to carry on with work?
Baroness Vere of Norbiton (Con)
I think that I have already answered the noble Lord’s first question. On his second, obviously the Government will be watching the economy as we go through this period of lifting the restrictions and monitoring the impact carefully.
Lord Whitty (Lab) [V]
The Minister appears to be blaming the industry and the pandemic but, given that she referred to discussions in 2016 and 2018, do the Government not have some responsibility in this respect? This crisis was eminently predictable, given the age profile of drivers and the likely reaction of east European drivers to Brexit. Do the Government need more powers and responsibilities to establish an emergency programme of training for qualified HGV drivers and to implement it in concert with the industry, unions and FE sector now?
Baroness Vere of Norbiton (Con)
I have said that this is a partnership between the industry and the Government. We will do what we can and we need industry to step up to the plate. I reiterate that the HGV levy has been lifted until mid-2022. That is a huge saving for the sector. It has the money that it could now invest in skills, and I very much encourage it to do so.
Lord Bradshaw (LD) [V]
The railways are very hungry for traffic. The Minister has a list that I gave her of simple modifications that could be made and there are resources available. Will she use the idle resources on our railways to better advantage to move freight?
Baroness Vere of Norbiton (Con)
The noble Lord will know that I am a great fan of rail freight and where it is appropriate to shift freight to rail we certainly should do so. However, one thing that we should be setting up with the industry is a clear and transparent charter that sets out good practice, decent minimum standards for our professional drivers and a commitment to initial and ongoing training. It is time to put the “professional” back into professional drivers and I would be happy to support the industry in working towards such a charter for hauliers and their customers.
Lord Birt (CB) [V]
My Lords, it is not just lorry drivers. I detect skill shortages in every part of my day-to-day personal and business life—shortages of roofers, data scientists, maintenance engineers, digital marketeers, gardeners, and many more. Do the Government have an analytical grip on the functioning of the UK’s labour market? Do we have appropriate educational skills and immigration policies to enable our economy to reap its full potential?
Baroness Vere of Norbiton (Con)
Any government Minister could probably spend about an hour talking about all our responses to the pandemic, the changes to our labour market and what will be needed in different parts of the sector. One of the big things that the Government are focused on is apprenticeships. In the haulage sector in particular, we did exactly as it asked. We increased the C+E apprenticeship from £6,000 to £7,000 a year. We now need the industry to step up and take that £7,000; there is a £3,000 incentive if that is done before 30 September. Let us get more people into jobs.
The Lord Speaker (Lord McFall of Alcluith)
My Lords, the time allowed for this Question has elapsed.
Environment Bill
Wednesday 7th July 2021
(3 years, 5 months ago)
Lords ChamberRead Full debate Environment Act 2021 View all Environment Act 2021 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 16-VII Seventh marshalled list for Committee - (7 Jul 2021)
The Principal Deputy Chairman of Committees (The Earl of Kinnoull) (CB)
My Lords, the Hybrid Sitting of the House will now resume. I ask all Members to respect social distancing.
I shall 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 shall call Members to speak in order of request. The groupings are binding. Participants who might wish to press an amendment other than the lead amendment in the group to a Division must give notice in debate or by emailing the clerk. Leave should be given to withdraw amendments. When putting the Question, I shall collect voices in the Chamber only. If a Member taking part remotely wants their voice accounted for, if the Question is put, they must make this clear when speaking on the group.
Clause 78: Drainage and sewerage management plans
Lord Berkeley (Lab) [V]
My Lords, I am pleased to be able to continue the debate that was adjourned on Monday. In proposing my Amendment 175A, which is to do with blue-green flood-risk management, I follow some excellent speeches on Monday evening, including ones from the noble Lord, Lord Cameron, on nature-based solutions, and the noble Lord, Lord Teverson, on grey water. Alongside blue-green, these solutions are all about the need for an integrated, holistic system of preserving the water supply and dealing with wastewater and storm-water.
It is obvious to say this: rain is valuable and belongs to nobody, but its supply is limited and therefore it needs to be used sparingly. It is sometimes used too much and sometimes used too little. There is too much of it and too little. In the home, as the noble Lord, Lord Teverson, said—and I certainly support his amendment—separating grey water is a great idea. I have also heard that there is more to do because, apparently, some washing machine manufacturers refuse to guarantee machines if rainwater is used. Obviously, you would not use grey water, but it seems to me that rainwater could be used. Why is it not used? It is another source of water, rather than using processed fresh drinking water.
Putting rain into sewers, which then causes overflowing, adds massively to the carbon footprint with pumping and treatment. I spent some time in the last few years wondering why it was necessary for the Thames Tideway Tunnel to be built—not because I did not want the River Thames cleaned up, but because the evidence shows that the water in the Thames meets all the regulations now and, if it were to be started today, the tunnel would be found to not be needed. This is a £5 billion project and what nobody seems to remember or think is that pumping the water from very deep shafts, as they will be when they get to the end, and treating the water, which is mostly either flood-water or river water, creates an enormous carbon footprint. If blue-green had been started and was working by then, this could have all been avoided. Also, of course, it would have created quite a few jobs locally, less skilled than those needed for the tunnelling and all the other work that goes into the Thames Tideway Tunnel. We must always recognise that big contractors love these big jobs—a bit like HS2—and there is often benefit in having smaller work done by possibly less skilled and local workers.
However, that is a slight diversion and I will explain to the Committee a little more about blue-green. It is the idea of keeping as much rainwater as possible out of the sewers. It is quite simple really. There are several ways of doing it. The first one, and the easiest one for many people to understand, is to make sure that the rainwater drains from the roofs of properties and does not go into the sewerage system. It should go into soakaways. Soakaways are suitable in many areas but in other areas maybe they are not.
You can say the same about the run-off from roads, car parks and other hard surfaces. It does not really matter whether they are municipally owned, government-owned or privately owned. It is quite possible—it has been done in a number of cities in the United States—to convert some of these what you might call waterproof surfaces into more absorbent ones and/or build soakaways underneath parks to reduce the peak flows into sewers, so that some of the peak flow goes into what I am calling soakaways. Of course, you carry on by separating the outcomes from these soakaways from the sewage going to sewerage works. The outcome from the soakaways goes into the watercourses and rivers.
This is much easier to do with new builds but one bit of work done in connection with the Thames Tideway Tunnel alternative was to look at the two foul sewers going round, I think¸ London’s Sloane Street, both of which are mixed rainwater and sewage. It would not have been that difficult to convert one into one and one into the other rather than having both having a mix. Retrofitting is also something to be looked at; it would certainly reduce the water rates in existing properties. For new builds, it is obvious. I hope Ministers will look at that with some interest.
One of the other problems which blue-green obviously has, and some of the other solutions may have as well, is the need for so many different bodies to facilitate them—local authorities, obviously, water companies, river authorities, highways authorities, building control, commercial companies, as well as residents. One also needs to look at a way of incentivising people to want to do this. For example, residents might see a reduction in their water or sewerage charges if they accept not putting their rainwater into the sewers. All these things need looking at.
To conclude proposing my amendment and supporting the other two I mentioned, together, we have given the Minister a good package of measures to reduce floods, sewage overflows and carbon footprints, all of which are achievable at not too high a cost, by different means and in different circumstances. In responding to this group, I hope the Minister says that he will take away my amendment and the other two, and come back with one combined proposal to sort out all these issues to the benefit of the environment, water quality, costs and the environmental footprint.
Baroness McIntosh of Pickering (Con)
I am delighted to follow the noble Lord, Lord Berkeley. I will speak to Amendments 192, 193 and 194 in my name and say a few words about the amendments in the name of the noble Duke, the Duke of Wellington. I am delighted to support Amendment 175 in the name of the noble Lord, Lord Teverson, which I have co-signed, being an enthusiastic supporter of grey water. Amendment 194A, in the name of my noble friend Lord Caithness, has much to commend it. I think a combination of these amendments will achieve what the Government are trying to do.
I say at the outset that one of the reasons I ask in Amendment 192 for the right to connect to housing developments is that, at the moment, it is not generally recognised that water companies are not statutory consultees on major new developments of 10, 30 or especially more—200 or 300—houses at a time. If the Government are not minded to make them statutory consultees, I hope my noble friend will look at involving local authorities more actively in the drainage and wastewater management plans. I understand that my honourable friend in the other place, Minister Pow, confirmed at the Dispatch Box that all risk management authorities will be required to participate in the drainage and wastewater management plans. I hope my noble friend takes this opportunity to confirm that; otherwise, I might have to bring forward an amendment on it.
I would argue that my Amendments 192, 193 and 194 are supplementary or the other side of the coin to those of the noble Duke, the Duke of Wellington. I would go further, actually; the problem with the noble Duke’s amendments is that the major issue with infrastructure and engineering at the moment is that there is no obvious alternative to storm overflows. Huge investment and disruption would be required, even if no practical issues remained, to provide a solution in the timeframe that everybody would like to see. Closing storm overflows without such alternatives would mean a far greater likelihood of properties and businesses flooding during periods of heavy rainfall. I just recount the visits I have made to, among other parts of the country, my own area of North Yorkshire and Cumbria: it is only when you visit people in the midst of a flood that you see how it affects their health, welfare and well-being. Having sewage in your home through a storm overflow is absolutely disgusting.
The cost estimate for replacing storm overflows is £100 billion and it would probably be much more. I welcome the work being done by the storm overflows taskforce, but could my noble friend put a date on when he thinks there would be any prospect at all of storm overflows being replaced and say what he would like to do in the meantime? Any infrastructure-based solution to replace them would be a massive undertaking in disruption and expense, as I have already set out. We have already spoken, on other parts of the Bill, of the ways that many of us contribute, through wet wipes, cotton buds and other products that trigger blockages.
I am wedded to ending the automatic right to connect, as I have set out in Amendment 192. The Water Industry Act provisions on drainage and surface water are based on Victorian approaches to sewage as a public health, rather than an environmental, risk. This Bill is an opportunity to update that part of the legislation—and not before time. With this amendment, alongside other proposed amendments on overflows, I am calling for a government commitment to review the drainage provisions of the Water Industry Act. With my noble friend Lord Caithness’s amendment on the need to review the Water Industry Act provisions, following these discussions, we could work in great harmony to achieve this together.
The Earl of Caithness (Con)
My Lords, I support many of the amendments in this group, and my Amendment 194A is on exactly the same theme.
I liked what the noble Duke, the Duke of Wellington, said on Monday and what the noble Lord, Lord Teverson, said on Monday about grey water. He is absolutely right, of course: there is no reason why this could not be included in every new building. Indeed, my noble kinsman and his noble friend, the noble Viscount, Lord Thurso, and I were involved in a project at the visitor centre at the Castle of Mey 15 years ago, and we did exactly this. It is perfectly feasible, has worked extremely well and is very beneficial for the environment.
All these amendments deal with a common theme: resilience to climate change. The Climate Change Committee has pointed out how behind the Government are on meeting the problems of resilience. The resilience needs to be improved, not only because we are building more and more roads, houses, commercial buildings and railways but because the weather is changing. The rain is getting heavier and often more localised. I refer again to the floods in the West Country 10 days ago, when whole roads were ripped up by the force of water coming down the hill. Most of that water should have been dealt with in a different way.
My amendment seeks to make surface water management more adequate. I am extremely grateful to my noble friend on the Front Bench for the amendment he has put forward but, like many others, I do not think it goes far enough. It is a good start, but on Report we need to strengthen it.
We have been quite critical of how our water has been dealt with, but one ought to just pause and thank our Victorian ancestors for building in the way they did. The fact that we can still use most of their system and get away with it in a reasonable fashion is a huge tribute to our ancestors. I hope that in 100 years, future generations will say that this generation was as good as the generation I am talking about, that of our great-great-grandfathers.
My amendment is to take away surface water, whether from new buildings or roads, from the sewage system. There is absolutely no need for it to go into the sewage system. As my noble friend Lady McIntosh said—I thank her for supporting my amendment—there is an automatic right to connect to a sewage system. The water companies are not statutorily consulted but told that a development is taking place and somehow have to meet it. If their system cannot meet it, that is where we have the floods, pollution and destruction of the environment.
My amendment is really very simple. It combines with various others to allow the Government to take a slightly different path. You cannot deal with the whole question of water unless you look at surface water. My amendment is to allow the Government to
“amend the drainage provisions of the Water Industry Act 1991 … to ensure they remain fit for purpose”.
At the moment they are not fit for purpose. There are other, better ways of dealing with it. Considering how much new development is taking place and about to take place, and how much more will take place when we get the—as far as I am concerned—dreaded planning Bill next year, now is the time to nail this problem before it is too late.
Baroness Jones of Moulsecoomb (GP)
My Lords, just as in the previous group, in this group there are some really forward-thinking amendments that can go a long way to ending our devastating impact on rivers and the wider environment. Some are so good that I have amendment envy and wish I had thought of them—but obviously two Greens cannot be everywhere, although we do our best.
We all seem to agree here that we currently use water in an extremely illogical way. So much clean, drinkable water is flushed down the loo when there is a really obvious alternative: to not use it. The separation and capture of grey water should be routine, and the Government should make it a requirement in building regs, because the benefits are so blindingly clear.
I operate a grey water system at home, which means flushing the loo with my washing-up water. It is very sophisticated. I walk with the bowl from one room to the other, and it works extremely well. The water out of our sinks is likely contaminated with eco-friendly soap, perhaps dirt from our hands, bits of food and things like that, but it is fine for washing our toilets, watering our gardens, even washing our cars—if you have one—and doing a whole host of other things. This relatively simple system will of course hugely cut down on our water usage and the stresses placed on the sewage system, because we automatically cut down our wastewater by almost half.
When we combine this separation and reuse of grey water with the separation of sewage from drainage, we have a much more sustainable water system. I hope that not very long into the future we will look back on the idea of using clean water to flush our toilets and then mixing it with rainwater, before spending huge amounts of money getting the sewage back out, as almost as illogical and disgusting as throwing our toilet contents out of the windows into the open streets, as used to happen a couple of hundred years ago. In truth, we have actually just made it a bit more complicated and put the sewers underground, but in essence it is the same: we are throwing our sewage into our streets.
This should be a priority for the Government, both at home and around the world. The same solutions that will clean up our sewage system in the UK will help clean, safe water systems elsewhere in the world. We have a responsibility to make sure that other countries have safe water supplies. This does all sorts of things, including reducing the risk of disease for millions of people in other countries. Of course, it also significantly reduces our disastrous impact on the earth’s rivers, lakes and seas.
I keep raising the issue of COP 26 but, quite honestly, we have to have something to take there that we are actually proud of. The rest of the world will be watching. It will not be like the G7; it will be a completely different situation in which other countries will judge us on what we are doing here, and I just hope we can measure up.
The Deputy Chairman of Committees (Lord Faulkner of Worcester) (Lab)
My Lords, the noble Lord, Lord Randall of Uxbridge, has withdrawn, so I call the noble Lord, Lord Lucas.
Lord Lucas (Con) [V]
My Lords, I very much support the idea that the automatic right of connection should end. We really need an arrangement that puts pressure on developers to make their developments as friendly to the water system as possible, and an automatic right of connection obviously does not achieve that—so that should be a very fruitful direction to go in.
Has my noble friend looked at the Hampshire County Council nitrates credit scheme? This is a scheme it is putting together so that new housing developments in Hampshire, which would otherwise add to the nitrate burden in rivers and therefore to nitrate pollution in the estuary, can offset that additional pollution by purchasing farmland, which is currently a substantial source of nitrates, and taking that out of production. This is an interesting idea, but I very much hope my noble friend will look at integrating such schemes into the overall direction of the Bill.
First, I do not think it is a good idea that developers should have a simple way around their obligations. They ought to be doing things internal to the development to reduce pollution and the stress on the water system. To allow them to buy their way out of it does not seem desirable. On the other side of things, if we are to take land out of production for these purposes, that absolutely ought to be integrated with the other schemes happening in the Bill—forestry, rewilding, biodiversity gain and so on—not just something that happens randomly on the side. I very much hope that between now and Report my noble friend will be able to take an interest in what Hampshire is up to.
Baroness Young of Old Scone (Lab) [V]
My Lords, wastewater infrastructure in England is a bit of a mess, as many noble Lords have said. I remember that when I came down from Scotland to live in England 40 years ago, I was amazed because in Scotland surface water and foul water were strictly separated. Discovering with horror that the casual intermingling of surface water drainage and sewerage systems was almost the rote in England—a curious mix of some legal stuff and some illegal arrangements—just staggered me.
We have not made much progress in those 40 years. There has been insufficient investment in drainage and sewerage infrastructure, and Ofwat does not always take the consequent environmental problems seriously enough in its price determinations. I welcome the requirement in the Bill for sewerage undertakers to prepare and, hopefully, implement drainage and sewage management plans, but I support Amendment 162A, tabled by the noble Lord, Lord Cameron of Dillington. It would give these plans an environmental objective, which, hopefully, would encourage Ofwat to agree more investment for environmental purposes.
Amendment 164 in the name of the noble Lord, Lord Bradshaw, would end the automatic right to connect, and it has been supported by a number of noble Lords. Water companies need to be able to say no to connecting developments where sewerage systems are already overloaded. The amendment would also kick-start discussions well in advance to ensure that adequate sewage treatment could be provided in appropriate time, at the point where developments can be flexible, and prevent future environmental damage. Amendment 192, in the name of the noble Baroness, Lady McIntosh of Pickering, would have a similar effect, although in the more restricted ambit of major new housing developments.
I am reminded of a dreadful face-off that had to take place between the Environment Agency and the developers of Corby when I was the agency’s chief executive. My noble friend Lord Rooker, who I am deeply grateful is not in his place, was Minister at the time and very keen on the redevelopment of Corby in the interest of jobs. Frankly, he beat me up severely to try to persuade the Environment Agency to provide the necessary licences for that development. Corby was going to increase in size massively but was perched on the top of a tiny, failing Victorian sewerage system that simply would not have coped. The face-off went on for months but eventually resulted in funds being found to improve the sewerage system. The development went ahead, but I must admit that I only ever enter Corby incognito since they appear to have quite long memories in those parts.
I have a particular question for the Minister. On the implementation of drainage and sewage management plans, what assurances can he give that the successive water price rounds, as determined by Ofwat, will provide the right level of funding for drainage and sewage management plans over a reasonably short space of time? Price rounds come round only periodically, and stretching that over several cycles would mean that we were still waiting a very long time for the improvement to our sewerage and drainage systems that needs to be delivered.
Baroness Bakewell of Hardington Mandeville (LD)
My Lords, this is an important group of amendments dealing with the improvement of drainage and sewerage systems, and it raises similar issues to the previous group that we debated on Monday evening. I have added my name to Amendments 162 and 163, tabled by the noble Duke, the Duke of Wellington, and also signed by the noble Baroness, Lady Altmann.
At Second Reading we heard from various noble Lords across the Chamber about the devastating effect that the discharge of untreated sewage is having on our rivers, waterways and coastal waters. Amendments 162 and 163 seek to ensure that sewage treatment plants are improved and that there is separation of surface water drainage systems and sewerage systems, an issue that the noble Baroness, Lady Young of Old Scone, has just raised.
Water companies must ensure that they are operating within the law, and their priority should be to ensure that no foul water is discharged into rivers and waterways. That must take precedence over shareholder dividends. Apologies to any Members here today who hold shares in the water companies, but cleaning up the state of our waterways has to move higher up the agenda. The noble Duke has also referred to a deferral of dividends.
Water companies have management plans, and it is time that the safe and effective treatment of sewage had equal status with drinking-water quality. The rest of the world, especially the USA, thinks of our country as a green and pleasant land with flowing gentle rivers and streams, when the reality is very different, with raw sewage and waste floating in our rivers and clogging up our streams.
Ofwat has a role to play here, alongside the Treasury and the Secretary of State, in imposing a legal duty on the water companies to clean up their act. The noble Lord, Lord Cameron of Dillington, has spoken about the new drainage and sewage management plans. He encourages sewerage authorities to look positively to nature-based solutions instead of using SUDS. Nature-based solutions must be designed before development begins. The noble Lord also gave graphic details of rubber particles and road oils, which often run off our roads and end up in our rivers. Sewage treatment works are not capable of dealing with these pollutants, so yet another toxic substance enters our waterways.
My noble friend Lord Teverson has spoken of the need for all new buildings to be fitted with greywater systems. This is a far better use of water and reduces the actual demand for freshwater. I too remember the BREEAM standards for all new buildings, promoted by Jonathon Porritt when we were both on the South West of England Regional Development Agency many years ago.
Water is a finite resource and we should reuse it where possible. The housing shortage is acute but so is the need to increase the quality of our rivers and waterways. Conserving and reusing water is all part of ensuring that the country meets its targets on all fronts. The noble Lord, Lord Berkeley, has spoken eloquently about blue-green flood risk management, the collection of rainwater and preventing it from entering the sewerage system.
We all realise that the water authorities are under pressure, but it is time the capacity issue of clean water and sewage disposal was tackled in a cohesive and overarching way. It cannot be acceptable for raw sewage to be discharged into rivers, often where children will swim and play in the summer holidays. If there is insufficient capacity at treatment plants then it is time for infrastructure investment. The Government want to build more much-needed housing. If investment is made in water treatment and sewage disposal then there should be no block on housing development.
The noble Baroness, Lady McIntosh of Pickering, has also spoken about the capacity of water treatment plants and the connection of new housing estates. The noble Baroness is correct to identify that there should be a legal obligation to respond for statutory consultees on major new housing developments. They cannot later then say that they do not have the capacity to cope. They must flag this at the start of the process and work with local authorities to ensure that no housing development takes place where the result will be raw sewage discharged into waterways.
The noble Lord, Lord Lucas, has supported ending the automatic right of connection to the sewerage system, and developers should take more responsibility for their actions. The noble Earl, Lord Caithness, has spoken about the need for resilience in our water management. The noble Baroness, Lady Jones of Moulsecoomb, has spoken about the using rainwater instead of fresh water.
I look forward to the Minister’s response to this group of amendments, the subject matter of which has been raised several times during our deliberations on this Environment Bill. It is time that we resolved it.
Baroness Hayman of Ullock (Lab)
My Lords, noble Lords have made some important contributions in this debate. I would like to start by thanking the noble Duke, the Duke of Wellington, for his clear and helpful introduction on Monday evening to his Amendments 162 and 163. As we heard from the noble Duke, these two amendments would embed within drainage and sewerage management plans the requirement to continually improve the sewerage system and reduce the harm caused by wastewater management.
The noble Duke also talked about the importance of improving systems annually, while recognising that the upgrades needed to our drainage and sewerage systems constitute a serious level of investment. As the noble Baroness, Lady Bakewell of Hardington Mandeville, has just said, both the Treasury and Ofwat will have an important role to pay, but as the noble Duke, the Duke of Wellington, rightly pointed out, this will be a green investment, with an immediate benefit for the environment and for all wildlife. My noble friend Lady Young of Old Scone mentioned the lack of investment over many years; I thought her example of the difference she noticed between England and Scotland when she moved here was really quite striking.
Amendments 162A and 163A in the name of the noble Lord, Lord Cameron of Dillington, consider the importance of the new drainage and sewerage management plans to deliver environmental benefits. The noble Lord referred to the dramatic rise in planned housing provision—other noble Lords have mentioned this—and to how important it is that drainage and sewerage plans actually work. His amendment is designed to work not only for customers but for the environment. As he said in his introduction, nature-based solutions should be a compulsory part of the planning system.
Amendment 164, in the name of the noble Lord, Lord Bradshaw, would end the automatic right to connect, enabling water companies to decline new connections to the sewerage system where this would cause environmental harm. His introduction, and the wider debate, have shown support for resolving this situation.
In the previous group, on Monday, we debated the Government’s new Amendment 165, on storm overflows. As we heard, this followed the huge support for the proposals contained within Philip Dunne’s Sewage (Inland Waters) Bill in the other place. This is welcome, yet, as my noble friend Lady Jones of Whitchurch laid out, government Amendment 165 falls far short of the ambition of the Private Member’s Bill, which is why the amendments we are debating in this group are necessary and why we support them.
We strongly support putting drainage and wastewater management plans on to a statutory footing. However, within the Bill, we have two particular concerns. First, the Bill confusingly refers to
“Drainage and sewerage management plans”,
despite Defra and the industry jointly working on “drainage and wastewater management plans” for many years, and companies already publishing plans with that name. We do not consider this to be a minor point, because the terms “sewerage” and “wastewater” are not interchangeable; “sewerage” has a narrower meaning that excludes many sources of contamination that enters rivers. If drainage plans are to be successful, all areas of contamination must be included.
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 all noble Lords for their thoughtful and helpful contributions on these important issues.
The drainage and sewerage management plans introduced by Clause 78 will deliver improvements for both customers and the environment. They will be produced at least every five years and cover a 25-year planning horizon, enabling sewerage undertakers to develop and maintain a complete picture of their networks, including their capacity and the future demands on them. This is essential for undertakers to understand risks to their networks, their customers and the environment, and to develop mitigations to address them.
Regarding Amendments 162 and 163 in the name of the noble Duke, the Duke of Wellington, Amendment 164 from the noble Lord, Lord Bradshaw, and Amendment 192 from the noble Baroness, Lady McIntosh of Pickering, the Government wholeheartedly agree that water companies must improve their drainage and sewerage systems and report on discharges. It is for this reason that Clause 78(3) sets out the specific matters that drainage and sewerage management plans must address. Plans must provide an assessment of the sewerage undertaker’s drainage and sewerage system capacity, including “current and future demands”, as well as its resilience. The sewerage undertaker must set out in the plan how it will maintain an effective system of sewerage and drainage and when any necessary actions with regard to this will be taken.
Paragraph 681 of the Bill’s Explanatory Notes makes it explicitly clear that
“environmental risks will include storm overflows and their impact on water quality.”
The relevant Ministers may also make directions specifying additional matters that must be addressed by the plan. I want to be clear that the Government will not hesitate to use this power of direction if any sewerage undertaker’s plans fall short. The Government are also clear that sewerage undertakers must be transparent. Clause 78(5) requires sewerage undertakers to review their plans annually and
“send a statement of the conclusions of its review to the Minister.”
In addition, the new government amendments to the Bill, which we discussed on Monday, will further commit English sewerage undertakers to report annually on storm overflow activity.
Finally, the plans will facilitate collaboration between sewerage undertakers, local authorities and developers to understand proposed new housing developments and possible future pressures that may be placed on an undertaker’s system. Drainage and wastewater management plans will be taken into account for the first price review and every subsequent review. My understanding is that work on the next review begins pretty much immediately after the first review is finished. I say that in response to the noble Baroness, Lady Bakewell, who I think raised that issue.
I move to Amendments 162A, 163A, 175A, 193 and 194A from the noble Lords, Lord Cameron of Dillington and Lord Berkeley, the noble Baroness, Lady McIntosh of Pickering, and my noble friend Lord Caithness. The Government are clear that we expect plans to deliver for both customers and the environment. I am pleased to inform noble Lords that the UK Government, the Welsh Government, Ofwat, the Environment Agency and Natural Resources Wales will shortly be issuing joint guidance to undertakers making it clear that we expect them to consider green infrastructure and nature-based and low-carbon solutions when mitigating risks.
As I said on Monday, our view is very much that, where a nature-based solution exists, it must be the default. In these days of tightened budgets and reduced access to resources, it is incumbent upon government to make sure that when we purchase a solution, it delivers in the broadest possible way and, almost every time, that is a nature-based solution. I hope that that reassures the noble Baroness, Lady Bakewell, who made a very passionate case for nature-based solutions. Clause 78 must therefore be as broad as possible to enable all this to continue as plans are placed on a statutory footing. Again, I reassure noble Lords that the Government will not hesitate to make directions to undertakers specifying additional matters that must be addressed by the plans if they are inadequate.
I emphasise that it is current government policy that nature-based solutions should be considered first, as I said earlier. The Government promote the use of blue-green infrastructure, such as sustainable drainage systems, grey water recycling and natural flood management. Indeed, the National Planning Policy Framework already ensures that blue-green infrastructure is provided in all new developments unless there is clear evidence that this would not be appropriate, and it should be given priority in new developments in flood risk areas.
Last year, the Government also published the Flood and Coastal Erosion Risk Management: Policy Statement, which sets out our long-term ambition to create a nation more resilient to these increasingly unpredictable risks. The statement sets out our commitment to
“double the number of government funded”
flood management projects, which includes natural flood management. Alongside this, the Government’s Storm Overflows Taskforce, set up to eliminate harm from storm overflows, is considering a number of drainage issues including blue-green infrastructure, and will be reporting in the summer.
I take this opportunity to add a response to a comment that was made by the noble Lord, Lord Cameron of Dillington, on this issue right at the end of the debate on Monday. He suggested that I had dismissed the possibility of eliminating harm from storm overflows on the basis that it would be too expensive. That really is not at all what I said. I pointed out the estimated cost, which is anything from
“£200 billion to £500 billion”.—[Official Report, 5/7/21; col. 1137.]
We do not know exactly how much it is going to cost. It is therefore surely right that a Minister standing at the Dispatch Box should not casually accept an amendment that would lead to that scale of investment over an unknown period. However, we are committed to tackling this area and are doing the work to inform the appropriate policy steps. Like all noble Lords who have spoken on this issue, we do not regard it as acceptable that sewage is poured into our waterways and water systems.
The Government’s environmental land management schemes also have reduction of flood risk as one of the key outcomes eligible for public money. The Government have committed to delivering an integrated approach to managing water, and the actions I have outlined will support water quality, flood risk management and climate resilience goals to protect communities and the environment. They will also contribute towards the Government’s commitment to the UN’s global sustainable development goals.
Regarding Amendment 194 tabled by my noble friend Lady McIntosh of Pickering, water and sewerage undertakers and internal drainage boards maintain strong relationships and engagement with local authorities in relation to planning. This helps identify significant future developments long before formal planning consent is sought for them and enables early discussion.
Clause 78 provides for regulations as to
“the persons to be consulted”
on drainage and sewerage management plans. The meaning of “persons” is very broad and will enable the Government to set out in regulations all existing statutory consultees as well as a range of other stakeholders to be consulted. As water companies will co-operate with developers and local authorities in the preparation of their drainage and sewerage management plans, this will help mitigate the impacts of automatic connection by planning better for future housing developments. I say that in response to my noble friend Lady McIntosh, who rightly raised that issue.
Also, for my noble friend’s benefit, regarding the assurance provided by my honourable friend in the other place, Rebecca Pow, I can reconfirm and reissue that assurance here in front of this Committee. Under the Flood and Water Management Act 2010, water and sewerage companies and a number of other bodies are statutory flood-risk management authorities and therefore must co-operate with each other. To avoid any possible doubt, we are committed to preparing an amending statutory instrument to ensure that it is crystal clear.
I will respond very briefly to the noble Baroness, Lady Hayman. We refer to drainage and sewerage management plans in the Bill because that is the wording used in the Water Industry Act, which this Bill amends. I am assured that it means the same thing in real terms and there is no discrepancy.
Regarding Amendment 175 from the noble Lord, Lord Teverson, I am pleased to say that my right honourable friend the Environment Secretary last week published a Written Ministerial Statement on reducing water demand. This announced actions the Government will take in response to the 2019 consultation on measures to reduce personal water consumption. In response to the noble Lord, Lord Berkeley, this includes plans in 2022 to
“develop a roadmap towards greater water efficiency in new developments and retrofits”,
including through building regulations and using new technologies to meet these standards. I am happy to confirm that we will be considering the use of grey water recycling further as part of this work.
The lead department in relation to planning is of course not Defra but MHCLG, and I am in regular discussions with that department, as is my noble friend Lady Bloomfield. I have been asked by the Secretary of State for MHCLG to help identify things that need to be included in building regulations that will further add to protections of the environment, not just in relation to water but to a whole range of biodiversity and nature-related issues. That is an invitation that I and Rebecca Pow will greedily accept.
The Deputy Chairman of Committees (Lord Faulkner of Worcester) (Lab)
My Lords, I have received a request to speak after the Minister from the noble Baroness, Lady Altmann.
Baroness Altmann (Con) [V]
My Lords, I apologise for not being able to participate in the earlier discussion. I thank my noble friend for his clear response and for the meeting that he held. Will he clarify the Government’s thinking? Clause 78 requires a plan and an annual review, but who takes responsibility for the urgent action needed to control not just storm overflows but other discharges that are polluting our rivers? What will plans entailing long-term action mean for the Government’s expectation of how this will work? I know that my noble friend passionately agrees that we must deal with this issue. Will he commit to having further discussions with all interested noble Lords?
I thank my noble friend, as I will call him, the Duke of Wellington for all the work he has done to address the issue of who should take responsibility for the urgent action and financing needed to improve this situation and to invest the necessary resources to avoid or reduce polluting our rivers year by year. This could be done together with Ofwat, possibly by passing the costs of sewage waste on to household and commercial water bills. At the moment, it seems that people do not really focus on the costs of the waste they generate: it is waste, it is gone and therefore it does not feature, as it would if there were a perceived or actual cost. Perhaps the Minister would agree to meet to discuss this possibility.
Lord Goldsmith of Richmond Park (Con)
My Lords, I thank my noble friend for her useful intervention. She is right: the cost of pollution rarely features on the balance sheet. Her suggestion that, in order to move forward, we need to find a way of internalising those costs is spot on. It is also the main thesis of the Dasgupta review. She asked who will be responsible: ultimately, the water companies will need to improve their act in order to prevent pollution of our waterways, but it is for the Government to set the framework and the rules. It is not the Government who will deliver the solution on the ground: that will be for the water companies and they will be required to do so. She also asked if I would be willing to meet. Yes, of course, I would be happy to meet her, my noble friend the Duke of Wellington and anyone else who has a particular interest in this issue. I am very keen to get this right.
Lord Teverson (LD)
My Lords, I thank the Minister for assuring us that he is talking to the Ministry of Housing, Communities and Local Government about greywater and other related issues. I ask him to work really hard on this, because the longer it goes on, the more homes—hundreds of thousands—will be built that are not up to the standards that probably everybody in this House wants, including the Minister. Can he give us some idea of when we will get the new standards up and running, be it on greywater, flooding, heat conservation, net zero, or keeping houses cool in the future when temperatures rise? This is urgent, and housebuilders need to get on with it.
Lord Goldsmith of Richmond Park (Con)
I am not sure that I can give the noble Lord a date, because that is not in the hands of Defra and certainly not in in mine. I can absolutely offer him an assurance, however. There are an enormous number of things that need to be done to building regulations in order to maximise the chance for nature to flourish, to tackle water waste, and to slow down the flow of surface water to prevent flooding. The list goes on and on. I am certainly not an expert: I have ideas of my own, but I am talking to a number of people outside government who really are experts. I am harvesting the best possible ideas and suggestions for building regulations. I cannot guarantee that I will win every argument, but I extend that invitation to Members of this House. If people have ideas about things that should be included—particularly for new-builds, but also retrofit—I will gratefully receive them because I am in the market for ideas.
The Duke of Wellington (CB) [V]
My Lords, I thank everyone who has taken part in this debate, which was interrupted, unfortunately, on Monday evening. Like the noble Baroness, Lady Hayman, I was very struck by the speech of the noble Baroness, Lady Young, about the difference between Scotland and England in the treatment of wastewater. I must admit that I had not known that. I hope that the Minister and his officials will take note of that discrepancy and consider it an additional indicator of how much we still have to do in England to improve our systems.
I am obviously disappointed that the Government are not yet prepared to place an immediate legal obligation on the water companies to begin to improve, and continue to improve, their treatment plants. I am pleased that the Minister has indicated that he is prepared to meet further. It would be helpful if we could find amendments that are more acceptable to the Government, because I sense a strong cross-party consensus in the House that we have to do more than the Bill currently proposes. I particularly hope that the Government will consider doing more along the lines of the amendments of my noble friend Lord Cameron, on nature-based solutions, and the noble Lord, Lord Teverson, on greywater systems.
There were many good parts to this debate, but the best part was the clear recognition throughout the House that we must do more to clean up our rivers. The Minister has mentioned again this afternoon the disturbingly high estimated cost of upgrading the systems: between £200 billion and £500 billion. Obviously, that is an alarming figure. Is he prepared to write to me explaining how that figure was arrived at? Clearly, the country as a whole would have great difficulty financing that. Nevertheless, we must deal with the problem. It has been a helpful debate, along with the debate we had on Monday evening about storm overflows, but in the meantime, I beg leave to withdraw my amendment.
“Storm overflows
In Part 4 of the Water Industry Act 1991 (sewerage services), after Chapter 3 insert—“CHAPTER 4STORM OVERFLOWS141A Storm overflow discharge reduction plan(1) The Secretary of State must prepare a plan for the purposes of—(a) reducing discharges from the storm overflows of sewerage undertakers whose area is wholly or mainly in England, and(b) reducing the adverse impacts of those discharges.(2) The reference in subsection (1)(a) to reducing discharges of sewage includes—(a) reducing the frequency and duration of the discharges, and(b) reducing the volume of the discharges.(3) The reference in subsection (1)(b) to reducing adverse impacts includes—(a) reducing adverse impacts on the environment, and(b) reducing adverse impacts on public health. (4) The plan may in particular include proposals for—(a) reducing the need for anything to be discharged by the storm overflows;(b) treating sewage that is discharged by the storm overflows;(c) monitoring the quality of watercourses, bodies of water or water in underground strata into which the storm overflows discharge;(d) obtaining information about the operation of the storm overflows.(5) When preparing the plan the Secretary of State must consult—(a) the Environment Agency,(b) the Authority,(c) the Council,(d) Natural England,(e) sewerage undertakers whose area is wholly or mainly in England, or persons representing them, and(f) such other persons as the Secretary of State considers appropriate.(6) The Secretary of State must publish the plan before 1 September 2022.(7) The Secretary of State may at any time revise the plan, having consulted the persons referred to in subsection (5), and must publish any revised version.(8) The plan, and any revised version of it, must be laid before Parliament once it is published.141B Progress reports on storm overflow discharge reduction plan(1) The Secretary of State must publish reports (“progress reports”) relating to the plan under section 141A.(2) A progress report is to contain the Secretary of State’s assessment of—(a) the progress made, during the period to which the report relates, in implementing the proposals in the plan (or any revised version of it), and(b) the effect of that progress on the matters referred to in section 141A(1)(a) and (b).(3) The first progress report must relate to the period of three years beginning with the day on which the plan under section 141A is first published.(4) Subsequent progress reports must relate to successive periods of five years after the period referred to in subsection (3).(5) A progress report must be published within 12 weeks following the last day of the period to which it relates.(6) A progress report must be laid before Parliament once it is published.141C Annual reports on discharges from storm overflows(1) A sewerage undertaker whose area is wholly or mainly in England must publish annual reports in relation to the undertaker’s storm overflows (“storm overflow reports”).(2) A storm overflow report must specify, for each of the sewerage undertaker’s storm overflows—(a) the location of the storm overflow;(b) the watercourse, body of water or underground strata into which the storm overflow discharges;(c) the frequency and duration of discharges from the storm overflow in the period to which the report relates;(d) where the information is available, the volume of each discharge in that period; (e) information on any investigations that have taken place or improvement works that have been undertaken in relation to the storm overflow during that period.(3) Storm overflow reports are to relate to successive calendar years, starting with 2021.(4) A storm overflow report must be published by a sewerage undertaker before 1 April in the year after the calendar year to which it relates.(5) A storm overflow report must—(a) be in a form which allows the public readily to understand the information contained in the report, and(b) be published in a way which makes the report readily accessible to the public.(6) The duties of a sewerage undertaker under this section are enforceable under section 18 by—(a) the Secretary of State, or(b) the Authority, with the consent of or in accordance with a general authorisation given by the Secretary of State.141D Environment Agency reports(1) The Environment Agency must publish annual reports in relation to the operation of storm overflows of sewerage undertakers whose area is wholly or mainly in England.(2) A report under this section must specify—(a) the location of the storm overflows;(b) the watercourse, body of water or underground strata into which the storm overflows discharge;(c) the frequency and duration of discharges from the storm overflows in the period to which the report relates;(d) where the information is available, the volume of each discharge in that period.(3) Reports under this section are to relate to successive calendar years, starting with 2021.(4) A storm overflow report must be published by the Environment Agency —(a) before 1 April in the year after the calendar year to which it relates, and(b) in such manner as the Environment Agency thinks fit.141E Interpretation of Chapter 4(1) In this Chapter, references to a storm overflow of a sewerage undertaker are to any structure or apparatus—(a) which is comprised in the sewerage system of the sewerage undertaker, and(b) which, when the capacity of other parts of the system downstream or of storage tanks at sewage disposal works is exceeded, relieves them by discharging their excess contents into inland waters, underground strata or the sea.(2) References in this Chapter to discharges from a storm overflow do not include discharges occurring as a result of—(a) electrical power failure at sewage disposal works,(b) mechanical breakdown at sewage disposal works,(c) rising main failure, or(d) blockage of any part of the sewerage system downstream of the storm overflow.(3) Section 17BA(7) (meaning of sewerage system of a sewerage undertaker) applies for the purposes of subsection (1).”” Member’s explanatory statement
This amendment makes provision for a plan to reduce discharges from storm overflows, for progress reports on the plan and for reports on storm overflows by sewerage undertakers and the Environment Agency.
The Deputy Chairman of Committees (Lord Faulkner of Worcester) (Lab)
We now come to the group beginning with Amendment 176. Anyone wishing to press this or anything else in this group to a Division must make that clear in the debate.
Clause 82: Water abstraction: no compensation for certain licence modifications
Amendment 176
Lord Carrington
Member’s explanatory statement
This amendment seeks to remove the proposals for increased powers to vary or revoke abstraction rights without offering compensation to licence holders.
Lord Carrington (CB)
My Lords, I declare my interests as a farmer, as set out in the register. As a farmer, I think it would be more appropriate, in many ways, to discuss ways of stopping the rain than water abstraction licences. However, the climate is a law unto itself, and, unlike the Bill, it defies amendment.
I move Amendment 176 and will speak to Amendments 177 to 187, in my name, including Amendment 178, which is also in the name of the noble Lord, Lord Colgrain. They follow considerable discussion with and the support of individual farmers, as well as the National Farmers’ Union, of which I am a member. I record my thanks to the Minister and his colleagues at Defra for meeting me and the noble Lord, Lord Colgrain, listening carefully and responding to some of the issues.
There is no question over the full support of farmers for measures to protect and enhance water quality. The problem comes with the current lack of detail in the clause to revoke or change water abstraction licences—and, secondly, with the disappearance of compensation. Under current legislation, the Environment Agency has the power to revoke or change licences where environmental damage is being caused and to agree compensation. The new power widens the power of revocation or change to meet environmental objectives and removes the requirement to pay compensation.
If these clauses, as currently drafted, are implemented, they are likely to have severe consequences for agriculture and horticulture, particularly in areas where water abstraction has been the norm for many years. We are talking about some of the most productive land in the country, covering livestock, arable, fruit and vegetable and horticultural farming. We are talking about some of the most efficient farms in the land and some of the most technologically advanced farming in England. We are talking about farms with some of the highest investment costs in specialist buildings and machinery—and about some of the most expensive land in the country. Surely this is the type of agriculture that we should be encouraging, because expertise, technology, productivity and returns attract, and will continue to attract, investment and well-qualified and ambitious people. The threat to abstraction licences and the loss of compensation risks undermining all of this and might cause more agricultural production to locate overseas—to countries that have greater water issues than our own and fewer regulations to mitigate abstraction. Is this really what we want?
As far as Amendment 176 is concerned, this is not therefore a question of seeking to change the Environment Agency’s powers to vary abstraction licences. These can and do change when, for example, new environmental evidence emerges, indicating that abstraction is unsustainable. However, it is also a well-established principle that, when licence changes are made, the abstractor can be compensated for the loss of both the asset and the income resulting from that loss.
Farmer abstractors are vulnerable to licence changes because, usually, they lack the capacity to adapt to them in a timely manner. Water companies can engage with the Environment Agency in advance of proposed changes to agree a structured transition to, for example, an alternative water source. The asset management planning process secures the necessary funding for the water company to invest in the alternative intervention, having obtained customers’ agreement on their willingness to pay for it.
The process for farmers is very different. At present, they do not have the benefit of prior engagement with the Environment Agency, so the effect of the licence change on their business is immediate and often without warning. Access to alternative water supplies for individual farms tends to be limited, and it is unrealistic for them to expect that costs incurred in securing new supplies can be passed on to customers.
Lord Cameron of Dillington (CB) [V]
My Lords, it is a pleasure to follow the noble Lord, Lord Carrington, particularly as I agree with a lot of what he had to say, although, as he will see a minute, I come to some slightly different conclusions. Where I agree with him is that this is a tricky problem, and I speak as a farmer who grows and irrigates potatoes—or at least my son now does. I am aware that you can hardly sell unirrigated potatoes nowadays. It is all about skin finish: in the old days, you could, because mostly, of course, we peel the skin off our potatoes before we eat them, so the skin should really not matter. It should be the taste of the flesh underneath that is important but, apparently, or so we are told by the supermarkets, skin finish is king, and for that I am afraid that you need irrigation.
The second thing that makes this a tricky problem, as the noble Lord, Lord Carrington, referred to, is the huge capital involved in most of the crops needing irrigating. Returning again to the humble potato, you need stone separators, potato planters, ridgers, harvesters, grading lines and cold stores, not to mention the underground and overground pipes, as well as the pumps and irrigation equipment itself. All this could easily come to well over a million pounds, which huge sum most farmers will have had to borrow from the bank. The threat of all that borrowing going to waste or not returning the required interest is indeed frightening, although if your abstraction licence dates back to the 1960s or 1970s, as some of them do, and your capital is all paid off, it is slightly less frightening.
A third factor that makes this a tricky area is that whereas a water company has a network of pipes and many different sources of water, and so can juggle its extraction plans to cater for where the water might be in abundance, the farmer can get his or her water only from or adjacent to their own land. They cannot abstract water from a different catchment or a different aquifer from the one they farm on.
Why, might the Committee ask, am I wanting to shorten the leeway allowed to farmers from 2028 to 2023? The answer is that I am not; what I am saying is that no compensation for amending an abstraction licence should be allowable after January 2023. However, the Environment Agency should be able to extend the enforcement of the necessary licence modification for several years if it believes time is required by the individual business—for the building of a reservoir, for instance. This should be done on a case-by-case basis, and in that way most modifications can probably happen sooner rather than later. However, and this is my key point, the days when you can be compensated for not causing environmental degradation have, in my view, long since gone: you cannot be compensated for not causing environmental degradation.
At the risk of straying into the realms of the bleeding obvious, I should state that, as has been made clear again and again in our discussions on this water chapter, some of our rivers are in a pretty poor state: sewage overspills, road run-off, agricultural run-off and generally just having too many people or too much livestock per square kilometre all contribute to ever more damaging stuff—to use a highly scientific technical term—entering our rivers. Unless we can ensure sufficient water in the river to dilute that stuff, then trout, grayling, carp and perch, dragonflies, mayflies, shrimps and dippers could all disappear, along with irises, water violets and multi-fruited river moss, to name but a few lifeforms that are important inhabitants of our rivers. This dilution is important, and it must have been obvious to all farmers for years that anyone causing environmental damage by overabstraction was going to have to change what they did and how they did it; but, in some cases, very little has happened, and too many farmers have taken no action at all. There are still people extracting from rivers in the middle of summer.
It is possible for a farmer to build one, two or even three small on-farm reservoirs to ensure that they abstract only during the winter months. It is possible for farmers to share reservoirs. It is possible for licence sharing to exist between abstractors in a single catchment. It is possible to use precision irrigation systems which save huge amounts of water. There are a variety of possible solutions and it is to be hoped that all abstractors will be able to find some form of compromise on rivers and waterways where the environment is threatened. I gather from data produced by Defra last year that this amounts to some 18% of our rivers and waterways and over a quarter of our groundwaters. We cannot just go on allowing abstractors to continue to cause environmental degradation.
My proposal is that the Environment Agency should start talking now to farmers on an individual basis with a view to modifying licences which are deemed to be damaging rivers, especially where there are habitats of particular biodiversity importance. This obviously includes SSSIs, referred to in my Amendment 179A, which largely speaks for itself and I would have thought was indisputable.
Lord Chidgey (LD)
My Lords, it is always a pleasure to follow the noble Lord, Lord Cameron of Dillington, in this House. He speaks with great knowledge and conviction. It is equally a pleasure to listen to the words of the noble Lord, Lord Carrington. I cannot think of another occasion when I have spoken in this House, following two clearly eminent and very experienced farmers. As a civil engineer, I have to just look at the mechanics of it. Nevertheless, it is easier to be supportive of Amendments 176A, 180A and 187ZA, rather than the perhaps more holocaustic view of “what will happen if” that we have heard in earlier remarks.
These amendments, which we support, would provide for the power that is set out in the amendments to be available earlier than given in the Bill. Given the damage that is already occurring—as has been so eloquently put by the noble Lord, Lord Cameron—the impacts of over-abstraction can be long lasting and profound. I speak from the point of view of someone who, while not farming, lives close to the farming community in Hampshire. Noble Lords will have heard me speak earlier of the issues concerning the catchment area of the rivers that we live with. Fish and wildlife can be lost from channels that experience low flows, and take many years to recover. We are already experiencing, in Hampshire, salmon failing to meet conservation limits. So it is not a guess that things will be bad—they are already bad.
Sustainable abstraction will the support the Government’s 25-year environment plan commitments and species recovery targets. Many farmers already farm under sustainable licences, and we must use the techniques and innovations adopted by those farmers to support best practice. For example, as the noble Lord, Lord Cameron of Dillington, has mentioned, with forward planning and investment, on-farm reservoirs are one of the options that can be used.
Amendment 187B would apply to abstraction of water from a river or aquifer that is used by businesses for commercial reasons and related in some sense to agriculture. I am thinking here of businesses such as those that process and distribute cress—watercress and so forth—or fish farms. Water is abstracted, used and then returned to the river by the licence holder. The cost of monitoring inflows and outflows, we believe, should be met by the licence holder as a regular means of, if not controlling what the users are doing, at least being aware of what they are doing.
This has been a very serious issue in our locality. Hampshire is famous for its watercress, but it is reliant, very much so, on pure water. When there is a situation where a successful international commercial company uses your local area as its base for international processing and distribution of their salads, because it has the benefit of a licence to use the water from the chalk stream to clean and remove chemicals and pesticides and so forth on their product, which is then distributed all over Europe, if they are then found to be abusing the licence, and end up by polluting the river, you have a serious problem. I think the Government need to have the means at their disposal to control that. In the particular case I mentioned, it was controlled because individuals mounted a private prosecution to demonstrate the abuse was carrying on, and this exposed it and eventually stopped it.
The terms of the licence will be determined at a level recognising the activities on a particular river or chalk stream, matching or improving on the water quality, and ensuring, by using settlement ponds or recirculation systems, that there are no additional chemicals, nutrients or sediments in the outgoing water compared to the incoming water.
Viscount Trenchard (Con)
My Lords, I declare my interest as stated in the register, and as owner of a short stretch of the River Rib in Hertfordshire, a chalk stream with various numbers of brown trout, stocked rainbow trout and too many pike and alien crayfish. I also have two operating boreholes, supplying four different households with water and, over the weekend of our music festival, supplementing the water supply for 17,000 festival goers. Happily, our water table is strong, and the River Rib never dries up, unlike some other Hertfordshire chalk streams. The volume of water that we extract is now below the minimum amount that would trigger the requirement for a licence, but those whose volumes require them to have licences should receive compensation for unilateral and untimely cancellation or revocation of those licences. They provide farmers and market gardeners with the certainty they need to continue to produce food, and to invest in their businesses for the future.
I support Amendment 178, so well proposed by the noble Lord, Lord Carrington, and seconded by my noble friend Lord Colgrain. Would the Minister recognise that it is just not right, in the year when farmers start to lose a substantial part of their direct grants, that they should also face an additional increased risk of revocation or change to their licences? The risk is increased because clause (82)(1) of the Bill widens the possible grounds for revocation to include supporting environmental principles. It is therefore no longer necessary to claim that abstraction is causing environmental damage. I also worry about the arbitrary removal of excess headroom. The amount of rainfall varies considerably year on year and, whereas in years of ample rainfall a licence holder may use substantially less than his limit, he may well need to use his headroom excess in subsequent dry years.
I agree with the amendments put forward by the noble Lord, Lord Carrington, rather more than I do with those put forward by the noble Lord, Lord Cameron of Dillington, although I sympathise with his Amendment 179A, which he introduced persuasively. Otherwise, I think he is over-optimistic in seeking to bring forward the effective date from 2028 to 2023. I could support acceleration of the date, but only if the evidential bar were raised, as Amendment 179 seeks to do.
The Duke of Wellington (CB) [V]
My Lords, I rise metaphorically to support Amendment 187B in the name of the noble Lord, Lord Chidgey. I think there is agreement across the House that we must legislate in this Bill to clean up our rivers. There will be many ways in which we can achieve this; we have already debated cisterns and discharges.
As it is necessary and important to monitor air quality, so it is with water quality. Duties to monitor water quality will be placed by the Bill on the water companies. To place a similar obligation on any party licensed to abstract and then discharge water seems both proportionate and appropriate. This point was argued forcefully by the noble Lord, Lord Chidgey. I therefore hope that the Government will accept the spirit of his amendment and place it in whatever clause will make it most effective. It is an important amendment and the Government would be well advised to accept it.
Lord Colgrain (Con)
My Lords, I refer to my interests in the register. I rise to support my noble friend Lord Carrington and to add my name to his Amendment 178. I also echo his words of thanks to the Minister for the time that he and members of his department gave us during our virtual meeting to discuss this amendment and for his subsequent letter.
While my noble friend focused his concerns on abstraction rights for arable and horticultural farmers and businesses, my concern is for licences that relate to spring chambers that are gravity fed from underwater strata. These are most often used to provide water to domestic dwellings and livestock troughs and many of these licences have been granted since the 1960s and before. Consequently, they have attached to them over 60 years’ worth of infrastructure investment, whether pipelines or reservoirs, and have become an integral property right and business asset, as my noble friend has already rightly said.
In the overview paragraph of his letter to us, the Minister says that a licence can be varied or revoked to protect from serious damage to the water environment. How this would apply to gravity-fed licences is not clear, since, after all, water appears from a spring and finds its own way to a watercourse. Where is the potential damage in that? In the paragraph dedicated specifically to gravity-fed licences, the Minister’s letter says that abstraction from springs of under 20 cubic metres a day does not need a licence at all, since at that volume they are exempt, but that over that the Environment Agency will balance the needs of abstractors and work with them to find alternative solutions if a revocation or variation is required. Frankly, I do not understand what that means, unless it refers to utilising mains pipelines, which defeats the original objective.
I am mindful of the words of the noble Earl, Lord Lindsay, in opening this debate that the Bill must satisfy the five Cs. If there is to be no compensation for the revocation or variation of these licences, the Bill will have failed in its defence of this category, in a manner where no environmental benefit is to be gained anyway.
During our virtual meeting, I understood the Minister’s officials to say that they did not think that gravity-fed licences would be included in revocation or variances. It is, after all, faintly ridiculous to think, King Canute-like, that water would be prevented from discharging itself from geographical fault lines. I look forward to confirmation from the Minister either that there is indeed scope for them to be excluded, or that there is scope for compensation for this category to be paid.
The Deputy Chairman of Committees (Lord Duncan of Springbank) (Con)
I call the noble Baroness, Lady Ritchie of Downpatrick. She is not with us. I call the noble Earl, Lord Devon.
The Earl of Devon (CB)
My Lords, it is a pleasure to support the amendments so ably proposed by my noble friend Lord Carrington. I understand from speaking with the Environment Agency locally that these provisions on the removal of water abstraction rights are directed for the most part at large water companies that have for many decades enjoyed the right to extract vast quantities of water from major waterways that they have never used and will likely never need to use. For example, I understand that South West Water enjoys the right to extract over 50% of the water in the River Exe, but it would never use it; if it did, it would cause huge environmental degradation to the sensitive and diverse lower reaches of the river.
If that was all the provisions achieved, they would have my wholehearted support, but they have a much broader impact. Once again, as we have heard, that impact will fall most harshly on the farming community, which will be under such considerable stress in the coming years.
Here, I note once more my farming interests. I also note and pray in aid a number of specific water abstraction rights that our farm in Devon has long enjoyed. Since I took over the farm, I have paid considerable sums each year to preserve those abstraction rights, but I have yet to use them, on the understanding that if those licences were not renewed, they would be lost for ever, impacting considerably the value of the land they serve and permanently restricting the form of agriculture that can be undertaken.
Your Lordships may query why a farmer would pay such sums for water abstraction licences that are not used. That is a reasonable question. The abstraction rights were established in the last century and regularly used then when the farm grew potatoes and other vegetable crops in considerable quantities. Cropping changes since have meant that the rotation now focuses on cereals, for which no irrigation is required, but the ability to extract water has been important, never more so than now.
As we have heard in various recent debates, we need to grow more of our own fruit and vegetables in the UK in the coming years to avoid exporting the environmental impact of a healthier national diet to other countries with lower standards. If we remove abstraction licences, we are in danger of limiting considerably the ability to diversify our nation’s farming, just at the time when we need to be doing the opposite, particularly as global warming is making changes to cropping a necessity. Also, are we not in danger of encouraging farmers now to make use of extraction licences that they do not currently need, solely to preserve them for the future, thereby merely adding to our water consumption?
Finally, it is not clear how these provisions sit fairly alongside basic property rights. Article 17 of the European Charter of Fundamental Rights states:
“Everyone has the right to own, use, dispose of and bequeath his or her lawfully acquired possessions. No one may be deprived of his or her possessions, except in the public interest and in the cases and under the conditions provided for by law, subject to fair compensation being paid”.
Given the Environment Agency already enjoys the power to revoke or change abstraction licences where they are shown to be causing environmental damage, thereby securing the public interest, how are the provisions of Clause 82 consistent with the basic right not to be deprived of possessions without fair compensation?
Baroness McIntosh of Pickering (Con)
I am delighted to follow the noble Earl. I would like to lend my support in particular to Amendment 176 and others in the name of the noble Lord, Lord Carrington. I commend his preparation and the detail he has given us this afternoon on this group of amendments and on what he seeks to achieve.
I am nothing other than a farmer’s friend, a fisherman’s friend and a friendly eco-warrior—I speak as a lay person in this regard. But I recall that, when chairing the Environment, Food and Rural Affairs Committee in the other place, for five years, there were two opportunities for our then Government—the coalition Government of my own party, the Conservative Party, supported so ably by the Liberal Democrats, when we had Ministers in each department from both parties—to consider abstraction policy. The first was in the context of the water management Act, which was adopted in 2010, and the second was in the Water Act 2014. Despite enormous efforts from the cross-party members of that committee, we were told that that was not the right time to come forward with an abstraction policy. The Government wished to take time, quite rightly, to consider a proper, well thought-out abstraction strategy and policy.
I look at the Bill and Explanatory Notes before us and I do not think we are quite there yet. That is why these well thought-out amendments from the noble Lord, Lord Carrington, serve a useful purpose in that regard. We have to accept that none of us wants to damage the watercourses, large or small, in any way, shape or form, and that we want to protect our aquifers and water, and particularly the fish and other habitats that are served by our watercourses. But we also have to accept that there are many competing uses of water.
From what I have seen and experienced, the farmers seem to be left as the last thought-about in that list. The mover and supporters of the amendment have explained that it is often the water companies and then industrialists who are considered. For example, it could be a brewery or a manufacturer; on a number of occasions I have visited Wilkin’s jam manufacturer—I admit to having a sweet tooth, and it is always a joy to visit. Many companies such as that are users of water and responsibly control its use. I urge my noble friend Lady Bloomfield of Hinton Waldrist to look carefully at ways in which farmers can have adequate provision of water supply.
The grace period should remain until 2028, for all the reasons that those speaking in support of the amendments have given. As the noble Lord, Lord Carrington, requested, there should be a licence plan, a formal appeal system and clarification of a new agreement—in fact, I think it was the noble Lord, Lord Cameron of Dillington, who suggested it. I entirely agree with what he signed up to, but moving that proposal forward to 2023 would be extremely ill advised.
I shudder for the future of farmers and their use of water at certain times of the year. I am concerned because, when one considers North Yorkshire, as one of the most rural counties in the country, there are times when there could be a flood in one part of the county and severe stress in its north-east. We must be mindful of the fact that there may be a need to abstract water in the summer months. I urge my noble friend the Minister in her response to express a note of caution, and I hope that the Government will take this opportunity to come forward with a proper, well thought-out abstraction policy within the context of the Bill.
Baroness Young of Old Scone (Lab) [V]
My Lords, the pressure on our wetlands, rivers and aquifers is huge and growing. Demands for water from domestic and business customers, and from agriculture, are increasing. Climate change is reducing the supply and reliability of rainfall, as well as increasing our demand on water resources. I cannot believe that it is 20 years since I started campaigning for the withdrawal of damaging abstraction licences; it is a sad state of affairs that the argument has not yet been completely won.
I cannot support Amendment 176 in the name of the noble Lord, Lord Carrington. Water is a resource that we all must share. Historic abstraction rights are just that—historic happenstance—and can be inequitable in their impact on the environment and other water users. Overabstraction of water from low-flow rivers can have long-lasting damage; it can cause fish and other wildlife to be lost for ever, particularly in chalk streams. None of that will help with the Government’s biodiversity target if overabstraction continues. It can also result in salt water contamination of water resources, including groundwater, which is difficult to remediate.
In the Water Act 2003, we made some progress with the right to compensation for holders of licences that were causing serious damage being withdrawn, but that was a small provision, and rarely used. The Water Act 2014 removed the requirement to pay compensation for water company abstraction licence changes, which was another step forward.
Many farmers already farm under sustainable abstraction licences and have developed innovative solutions for reducing the amount of irrigation water needed, and developed more on-farm reservoirs, as outlined knowledgably by the noble Lord, Lord Cameron of Dillington. We need to pay farmers under ELMS for developing innovative solutions in adapting to a changing climate. Amendments 176A, 180A and 187ZA, tabled by the noble Lord and outlined so eloquently by him, are highly reasonable, practical and fair, and would enable an acceleration of the deadline by which abstraction should cease. His amendments are based on a lifetime of practical agricultural experience and gain much stature from that. There can be no argument at all about removing compensation for variations to licences to remove excess headroom, where historic licences with unused headroom are hampering the more flexible allocation of water.
I also support Amendment 179A—again, one of the splendid amendments of the noble Lord, Lord Carrington of Dillington—which would correct the narrow definition of ecological health and enable changes to be made in licences that are preventing the effective conservation management of sites of special scientific interest and where abstraction is causing damaging low flows in chalk streams and the main salmon rivers.
Lord Cormack (Con)
My Lords, I am delighted to follow the noble Baroness, Lady Young of Old Scone. I always remember with great gratitude when she came to my constituency to help with a particular problem, and went to infinite trouble so to do. She speaks with knowledge and authority.
I have never heard a debate in your Lordships’ House that has been opened with two more impressive speakers, who illustrated the expertise we have here. A powerful case was made by the noble Lord, Lord Carrington, and I was almost totally persuaded by it—until I heard the speech of the noble Lord, Lord Cameron of Dillington. They both made powerful points, but what has emerged from the debate for me, as a pure lay man in these discussions, is that the prime purpose and overriding concern of an environment Bill—as underlined by the noble Lord, Lord Chidgey, who has an extremely sensible amendment in his name—must be the health of the environment, and you cannot have a healthy environment unless you have healthy rivers. The noble Duke, the Duke of Wellington, made a perceptive point when he underlined his support for the Chidgey amendment.
Where do we go from all this? Of course there has to be fairness at the end of the day, and an appeal procedure that can be respected by all concerned. I very much hope that, in the discussions that take place between now and Report—we say that again and again on this Bill—there can be an agreement on an appeal process whereby people do not feel that they have been harshly dealt with and, when following practices that they have followed over the years, they are not abruptly penalised. That is the direction in which we must go because—I come back to the prime point—the health of our rivers is fundamental to a healthy environment, and nothing must be done that further damages them. We referred in earlier stages of the Bill to the crucial importance of clean waterways—the noble Duke, the Duke of Wellington, has his own Private Member’s Bill in that regard—and we are a long way from achieving the cleanliness that is, I hope, the desire of us all.
Baroness Jones of Whitchurch (Lab)
My Lords, I thank all noble Lords who have spoken in this debate, and I have listened carefully to the informed and thoughtful contributions from all sides. They have well represented the two sides of the dilemma. On the one hand, we recognise that water abstraction plays a vital role in the economy, generating power, driving industry and helping our farmers to grow food. On the other hand, we recognise that unsustainable abstraction can do serious environmental damage, particularly by changing the natural flow of water, with lower water flows and reduced water levels, and ultimately contaminating water resources, thereby affecting fish and wildlife and in some cases contaminating by allowing salt-water intrusion.
I think that we all accept that an abstraction licence should not give an automatic right to extract water whatever the environmental consequences. As my noble friend Lady Young of Old Scone said, water is a shared resource. The actions of one individual or business can have devastating effects on another farm or community downstream, so we have to manage it on a collective basis. In this regard, I welcome the amendment in the name of the noble Lord, Lord Chidgey, which would require a licensee to measure water quality in an aquifer and share that information publicly. That is all part of that collective management of a very scarce resource.
We also have to recognise that climate change has already varied the supply of water since many licences were granted, and all the Government’s indices point to looming water shortages. We accept the point made by several noble Lords that the rights experienced by a water company are of a very different scale and impact from those experienced by farmers. It is on this latter group that we are focusing today.
The Government place great emphasis in their proposals on the Environment Agency managing the changes to licences through local consultation. In his letter to us of 10 June, the Minister said that
“we expect the Environment Agency to work closely with the affected licence holders before using these measures.”
But when I visited Norfolk with the NFU a couple of years ago, this was far from the case. Their licences, which underpinned a thriving horticultural sector producing fruit and vegetables for the UK market, were under imminent threat and, despite numerous requests, there was no dialogue with the Environment Agency—indeed, at one point, I even got the noble Lord, Lord Gardiner, involved to persuade for some consultation to take place. As we discussed in the earlier debate, the Environment Agency is struggling to meet all its statutory obligations because of the funding crisis. I hope that the Minister has received sufficient assurance that the Environment Agency has the resources to manage the renegotiation of all the licences so that we can have more sustainable licences in the future.
Ultimately, we agree that we have no choice but to withdraw a licence if the evidence shows that the environment is being damaged. We agree with the premise of Clause 82 that there should be a negotiated settlement, with a reasonable compliance period for changes to be introduced rather than an automatic right to compensation. We also agree with the noble Lord, Lord Cameron, that the new agreements should be for a minimum of 12 years. As he made clear, we should take a catchment-based approach and look to introduce the best techniques available for water efficiency in parallel with the negotiations.
We agree with the noble Lord, Lord Cameron, that an operative date of January 2028 is far too long a time. I was alarmed to hear the noble Lord, Lord Carrington, talk of deadlines as far ahead as 21 years. The current timescale does not appear to grasp fully the severity and immediacy of the problems facing our waterways. We need to move all farmers on to sustainable abstraction licences as soon as possible. We cannot wait until 2028 to start revoking licences.
If compensation remains payable until 2028, there is a danger that budgetary constraints will limit the scope of the Environment Agency to act to protect the environment in the interim. There is also the danger of perverse outcomes whereby people start to behave in their short-term interest just to protect their rights and potential access to compensation. As we have heard, the Government are already beginning to address this issue through the 2017 abstraction action plan, so there is even more reason for bringing the date forward from 2028, since presumably action on many of these areas is already in hand.
This has been a difficult debate, and I understand the arguments on both sides but, ultimately, we think that a date of 2028 is too long away and we therefore support the amendments in the name of the noble Lord, Lord Cameron, and look forward to the Minister’s response.
Baroness Bloomfield of Hinton Waldrist (Con)
I thank all noble Lords for another interesting discussion on this Bill. As the noble Baroness, Lady Jones of Whitchurch, has just observed, the Government are endeavouring to perform a careful balancing act by delivering on their manifesto commitments to improve the environment through addressing the consequences of unsustainable abstraction and modernising the licence system while minimising the impact on farmers.
To put things into context—I was grateful for the balanced comments of the noble Baroness, Lady Young of Old Scone—I say that we expect that, out of the 13,000 permanent abstraction licences, there may be up to 1,200 that are unsustainable and to which these measures may apply. However, the Environment Agency expects that the number of licences will reduce in any case before the need for the measures to be applied following local site investigations and discussions with licence holders.
I also thank the noble Lord, Lord Carrington, for his Amendments 176 and 177 to 179, and understand his concerns about the effect of the proposals on licence holders. My noble friend the Minister and I were grateful to be able to meet the noble Lord alongside my noble friend Lord Colgrain the week before last to discuss this issue further.
As we have heard from other noble Lords, unsustainable abstraction can have very negative impacts on the aquatic environment, including causing low flows. Low flows can lead to reduced levels of dissolved oxygen, harming fish and insects. It can also lead to increased temperatures and impede the migration of fish species, which may not be able to reach spawning grounds. I say in response to the concern expressed by the noble Baroness, Lady Young of Old Scone, about salmon stocks—an interest of mine, of course—that Defra, the Environment Agency and partner organisations have committed to the salmon five point approach to restore the abundance, diversity and resilience of salmon stocks, ensure that river flows are adequate for the habitats they support and increase spawning success by improving water quality.
Of course, low flows have a knock-on effect on other parts of riverine ecosystems, including specialist species which rely on the aquatic environment. Low flows can also lead to dire consequences for internationally important chalk streams, 75% to 80% of which are found in the UK.
However, we also know that abstraction is vital for food production, as farmers provide drinking water for livestock or abstract water to irrigate their crops. I hope that my noble friend Lady McIntosh of Pickering is reassured that I put that firmly on the record.
As we heard from the noble Lord, Lord Cameron of Dillington, with respect to his potatoes, skin finish is vital, and the Government recognise the importance of maintaining the high quality of British produce. We must therefore balance the needs of agricultural and other abstraction licence holders with public water supply demands and the need to protect the environment. That is why the Environment Agency is using a catchment-based approach and trialling innovative approaches in priority catchments with a range of local stakeholders, including water companies, the National Farmers’ Union, local abstractor groups, environmental groups and navigation interests to solve issues of access to water and unsustainable abstraction.
As we have discussed in our conversations to date, the Government want the Environment Agency to continue to work closely with abstractors to explore all voluntary solutions to unsustainable abstraction. I do not agree that this is a blunt regulatory process; rather, it is the last resort in a collaborative process.
On removing compensation rights, which a number of noble Lords mentioned, we want to protect licence holders’ ability to abstract where it is fair and right to do so. Unless a licence risks damaging the environment or is underused, we believe that licence holders should be eligible for fair compensation for any loss if licences are revoked or varied.
Farmers hold more abstraction licences than any other sector and so a higher number of farmers may be affected than other sectors. However, the Government expect the Environment Agency to work closely with affected licence holders to find alternative solutions which balance the needs of the environment and the needs of farmers. We expect these powers to be used by the Environment Agency only after all other options have been exhausted.
The Environment Agency, as the statutory environmental regulator, has the relevant expertise to determine which licences may be affected by the changing of the threshold from “serious damage” to “damage”. The Environment Agency grants licences and proposes their revocation or variation based on monitoring of abstraction and the water environment from which the water is being taken.
To reassure my noble friend Lord Cormack and the noble Lord, Lord Cameron, who appealed for an appeals process, as currently, an abstraction licence holder will be able to appeal to the Secretary of State in respect of a proposed revocation or variation of their licence, as well as to put forward any additional evidence from other experts, if they wish to do so. Therefore, the Secretary of State is already required to consider relevant expert evidence when using this power as it is an intrinsic part of the existing process. Furthermore, I reassure noble Lords that the Environment Agency has already started conversations with a number of farmers, which I hope will reassure the noble Lord, Lord Cameron, and the noble Baroness, Lady Jones, who asked about the ability of the Environment Agency to undertake all these powers.
We should expect that these measures will be used only after other solutions have been exhausted. Partly for this reason, they will not be available until 2028. In the meantime, we expect the Environment Agency to work closely with affected licence holders on a case-by-case basis, to provide data and evidence for why a licence needs to be varied or revoked, to consider the type of abstraction when making decisions, and to take a risk-based approach and consider what the abstraction is being used for.
On the noble Lord’s Amendments 180 to 187, I hope he can see that the Government have designed these provisions to make more water available to other abstractors and to reduce the risk to the environment. These measures will be focused on permanent licence holders who consistently abstract much less water than they are licensed to take, but the Government are well aware that not all licence headroom indicates a lack of need. It is appropriate to safeguard licence headroom in some cases—for example, to manage higher demands during dry weather as well as the planned future growth of a business. The 12-year period specified in the Bill allows for weather variations and crop rotations and fits with the current abstraction licensing strategy timeframe.
On Amendments 176A, 180A and 187ZA from the noble Lord, Lord Cameron of Dillington, I hope that the arguments I have given have convinced him that introducing these measures from 2028 strikes the right balance between protecting the environment and recognising their impact on abstractors.
As I think the contrast between the amendments in this group illustrates, the Government have worked hard to reach a fair compromise on this issue. As well as allowing time to find voluntary solutions, the 2028 date will give time for licence holders to adjust. We understand that this is particularly important for business certainty and continuity. Furthermore, it will allow time for the catchment-based approach to water resources to produce solutions. In the abstraction plan, published in 2017, the Government committed to update abstraction licensing strategies for all catchments by 2027, and a 2028 date aligns with this.
Regarding Amendment 179A, also tabled by the noble Lord, Lord Cameron, the Government simplified Clause 82 following feedback received during our consultation in 2019 that our original proposals were far too complex. Licences can be varied or revoked without the Environment Agency being liable to pay compensation where the Secretary of State considers the licence change necessary, having regard to the relevant environmental objectives under the water framework directive or to protect the water environment from damage. As such, I am pleased to confirm for the noble Lord that the clause can already apply to licences that may affect all sites designated under existing legislation, including sites of special scientific interest and Ramsar sites.
The Environment Agency also already considers the impact on flow when assessing the environmental impact of an abstraction licence, including when it is considering whether to revoke or vary a licence. The Environment Agency will continue to do so when these new powers are available on or after 1 January 2028.
Lord Carrington (CB)
I thank everybody who has participated in this debate. There have been some very informative contributions from all noble Lords. I may not agree with all of them, and I must say, with respect to the noble Lord, Lord Cameron, that maybe we should limit our conversations in future to the growing of potatoes in Devon, which he does very well, and the growing of potatoes in Lincolnshire, which I reckon we do quite well.
Leaving that aside, the most important thing that has come out of this debate is the uncertainty about some of the rules and regulations and the data that is used. It is this lack of certainty over the data behind licensing decisions, together with the use of the precautionary approach behind many of those decisions, that is causing great concern to farmers. I repeat my request, as I stated earlier, that proportionality should govern all this.
My other point is that the definition of damage is extremely vague, for understandable reasons. How and why should growers rely on the say-so of the Environment Agency, particularly in the light of the experience of the noble Baroness, Lady Jones of Whitchurch? You can understand where the concern comes in.
In the meeting with the Minister and the noble Baroness, Lady Bloomfield, a helpful promise came out. I shall read from the letter, which states: “We will set out in guidance what we expect the Environment Agency to seek to find collaborative, non-licensed change, such as habitat restoration and mutually agreeable voluntary solutions wherever possible. Responsibility for demonstrating that a licence is damaging or risks damaging the environment will lie with the Environment Agency.”
My conclusion is that the word “damaging” needs, if possible, to be defined very carefully and the guidelines given by the Ministry to the Environment Agency need to be circulated well in advance. I thank the noble Baroness, Lady Bloomfield, for her support for farming and, in particular, the noble Baroness, Lady McIntosh of Pickering. Some were perhaps less concerned about the importance of productive farming in this country than they. I also refer to the excellent speech of the noble Earl, Lord Devon, who mentioned the importance of property rights and the issue of compensation. That is a major issue, and I cannot underline enough how much money has been spent by some farms to put all this equipment in place. Although certainty is difficult, it is required for them.
In the circumstances, I beg leave to withdraw the amendment.
The Deputy Chairman of Committees (Lord Duncan of Springbank) (Con)
Before we move on, perhaps we need a pause to allow people to escape from the Chamber.
They have escaped. We now come to the group beginning with Amendment 188. Anyone wishing to press this amendment or anything else in the group to a Division must make that clear during the debate.
Clause 83: Water quality: powers of Secretary of State
Amendment 188
“having regard to the constraints of the periodic price review to which water companies are bound.”
Baroness McIntosh of Pickering (Con)
My Lords, I am delighted to move and speak to Amendment 188 in my name and to speak briefly on the other amendments in this group. I revert to what my noble friend said in summing up two groups ago. He said: “It is for water companies to improve their act and, indeed, under the Act, they are required to do so.” I put in an early bid, because I am starting to feel left out. I am one of the few who has not actually met the Minister, so I should like to meet him to discuss this point, together with the others who have already expressed interest.
I shall briefly sum up what the water companies are being asked to do. I am grateful to the Minister for referring to Clause 78(3)(a) to (g) and all the measures set out therein, which are not insubstantial. I also refer to my earlier remarks, which I shall not repeat, about the fact that we are grappling with Victorian infrastructure, combined with intense climatic changes, leading to sewage overflows. Not inconsiderable new expense is required to replace that infrastructure, so that is a new expense.
In my Amendment 188, I ask my noble friend to say at the outset that the Government will have regard to the constraints of the periodic price review to which water companies are bound. Essentially, non-regulated companies and regulated companies alike, such as water companies, which are regulated, are able to raise funds in the financial markets from either debt or equity investors. Non-regulated companies might typically do so to invest in additional capacity or new products or services so that they can increase future revenue from higher sales or higher prices, from providing a higher value service to customers and, from this increased revenue fund, the additional investment on a sustainable basis. However, regulated companies such as water companies, may be providing services largely on a monopoly basis, as here. Water companies are, rightly, being required to reduce water consumption—that is, sales of their core product—rather than increase it and cannot increase prices beyond the limited set at price reviews. This means that ensuring that price reviews focus sufficiently on the investment needed to meet long-term challenges is crucial.
I am asking for an acceptance that many of the obligations which water companies are required to meet are outwith their control. I referred earlier to the fact that they are not, as yet, statutory consultees. I welcome my noble friend’s reference to them being consulted on the new drainage and water management plans. I think we will all watch like hawks to see that that is the case.
I remind the Committee that houses built on floodplains after 2009 are not covered by Flood Re for insurance purposes if they flood. People frequently overlook that. Also, connections should be made only if the infrastructure is securely in place to carry the raw sewage safely away and not cause it to flow into combined sewers, which will lead to spillage, such as we discussed in previous amendments.
My question to my noble friend is precisely how much water companies can raise as part of the periodic review to cover that essential expenditure. He is absolutely right to say that the water companies are just about to embark on the next stage price review, so this is very timely.
My noble friend referred to the Explanatory Notes. Did the Government consult on the content of the Explanatory Notes and Clause 78 as regards the expenditure the water companies are being asked to make? Also, if we are unable to raise the money through the price review, or there is a limit on what we can raise, how can the Government encourage more private partners into flood prevention schemes under ELMS? I commend the partnership schemes that the Government have encouraged, but there is that little niggle.
On Amendments 188A, 188B and 188C, and Amendments 189 and 189A on water efficiency, there were three substantial reports in the 1990s. The Cave report on competition has largely been considered in relation to the competition aspects of retail and household delivery. I referred earlier to the Pitt review, all but a few recommendations of which have been actioned. Then there was the Walker review, under Anna Walker, on water efficiency, which has largely been overlooked. Much of that can be achieved by building regulations or, as we see in the amendments before us, labelling as well as building regulations.
I make a plea to the Government about how important it is to encourage the use of labelling. Without an accompanying label, with changed building regulations and minimum appliance standards, it is simply not possible to get household consumption down to the levels we need, which is the Government’s target. Introducing a labelling scheme alone will save 13 litres per person per day, but by accompanying it with minimum standards, that increases the saving to 27 litres per person per day. The difference between those numbers equates to about 1,000 megalitres per day by the second half of this century. That is roughly equivalent to a third of the current leakage losses. On their own, without any labelling initiative, changes to building regulations reduce consumption by a further 14 litres per household per day by 2065, equivalent to another third of current leakage losses.
I welcome those amendments and hope the Government will focus as much on water labelling and water regulation as on giving the water companies the ability to raise money they need through the price review.
Lord Cameron of Dillington (CB) [V]
My Lords, I apologise in advance since I shall probably speak for too long on this group, but many of the amendments are either in my name or of interest to me.
My Amendments 188A, 188B and 188C really speak for themselves. To some extent they are probing amendments. The question of water quality, how such quality is defined in relation to current and future possible pollutants and how these substances should be dealt with is clearly important to businesses and individuals across the country whose lives are in many ways touched by our rivers and waterways. As my explanatory note says, there is significant public interest in water quality, so we feel that the Secretary of State should set up a technical advisory group with the purpose of providing independent—I stress that word—advice to Ministers on the measurement and improvement of water quality standards. It is only in this way that the public will have confidence that the regulations, introduced by the Secretary of State and properly discussed by Parliament under the affirmative procedure, will be fair and equitable to all parties, including, most importantly, to the rivers themselves.
I turn to Amendment 189 in the name of the noble Baroness, Lady Parminter, and others. I particularly support subsection (4) of the proposed new clause, the bit on compulsory smart metering; I was going to table my own amendment on that subject but they beat me to it. The 2009 Walker review, referred to by the noble Baroness, Lady McIntosh, gave a clear message that metering is the fairest way of charging for water, and that after meters were installed the majority of households found that both their water charges and their consumption of water fell.
I believe there is no other commodity for which we do not pay according to use. That seems strange to me, particularly as we know that the commodity can be in very short supply. I am told that we are the only country in Europe that does not charge for water by volume. Metering also has the benefit of making people realise that water is not a free good of which there is an endless supply.
In 2014, during the passage of what is now the Water Act, Southern Water, the leader in this field at that time, reckoned that 100% metering would result in a 12% saving in water. As I said then, that is a gigantic amount of water to remove from the system day in, day out. I also said, thinking of people who might be detrimentally affected, that
“if there was a universal tariff for every litre of water used, some poor households with large families”
might suffer from such a change.
“However, with transitional tariffs, social tariffs and even block tariffs and the like, and with the meter in the house and not at the end of the garden, it is perfectly possible for everyone to benefit from 100% metering. There is absolutely no doubt that the environment would win hands down”.—[Official Report, 27/1/14; col. 1028.]
That is what I said then. Now, however, with smart metering, not only have the costs come down but the benefits to the environment are considerably greater. For instance, last year Thames Water announced that its smart metering programme in London has helped it to locate and repair 200 leaks across its network every week, leading to a reduction in overall leakage of 15% in one year—the biggest reduction in a century, I believe. Anglian Water has also said that in its trials it appeared that smart meters could reduce consumption by an average of 18%, considerably higher than the 12% being put forward by Southern Water seven years ago.
Meanwhile Arqiva, which has probably been lobbying us all—and one should always take private lobbying with a pinch of salt—said that its analysis shows that fitting just 1 million smart water meters in the UK each year for the next 15 years could result in saving at least 1 billion litres of water—one thousand million litres— per day by the mid-2030s. That is the most enormous amount of water and it would be the most enormous boost to the environment that we could possibly give.
Bearing in mind the conversations that we have had in this chapter about the excess demands on our sewage treatment works and the problems of storm overflows, we should think about the reduction of household outflows into sewage treatment works that universal metering would have. If the use of water goes down, that will inevitably be reflected in the amount of water sent down the drains. Maybe that figure of billions of pounds that the Minister was talking about to sort out CSO issues could be dramatically reduced if less water arrived at our sewage treatment works in the first place.
So, what has to be done? The first thing to do is to remove the link between metering and the water-stressed area classification; that is vital. Secondly, we should ensure that the 2024 price review investment planning process is used to enable water companies to accelerate the rollout of smart water meters. Thirdly, picking up on Philip Dunne’s Private Member’s Bill, I believe the Government should regulate, and I quote from his Bill,
“requiring by 2025 all domestic properties to have a metered water supply when being leased, rented or sold”.
I would add the word “smart” before the word “metered” because of the evidence that I have already quoted from the Thames and Anglian water authorities.
Lastly, the Government should mandate the rollout of smart water meters to every household and business by 2035 at the latest. These are all firm government measures that would not only benefit the consumer but give back to the environment—and, for that matter, other abstractors, bearing in mind the last group of amendments—literally billions of litres of water.
I will not say much about Amendment 189A in my name because in many ways its length and detail speak for itself. The Bill has a lot of new strategies and plans in its water chapter: water resources management plans, drought plans, drainage and sewerage management plans, and now of course storm overflow discharge reduction plans. However, this is the Environment Bill, which we hope over the next few days will give us a vibrant, sustainable and well-managed environment in terms of our air, soils, seas, countryside, woods and other habitats. Although we have discussed the management of our water over our recent groupings and how it affects water companies, farmers, anglers, canoeists and other users over the short term—and by the short term I mean anything under 10 years—we do not seem to have an overall long-term strategy for creating a high-class water environment that will ensure that our aquatic biodiversity flourishes.
In the context of the myriad human uses of our waterways, how do we ensure that we have enough water for the flora and fauna that should rightly belong to our aquatic world, including the 500,000 hectares of wetland habitat promised in the 25-year environment plan? From the smallest of bugs through amphibians, fish, mammals, birds and our rich aquatic flora, we need an all-encompassing water strategy for England and its nature, as my amendment proposes.
Baroness Parminter (LD)
My Lords, I support all the amendments in this group. I have added my name to several of those tabled by the noble Lord, Lord Cameron. I shall speak to my Amendment 189, which is about reducing household water usage, and I am grateful for the support for it from the noble Baronesses, Lady Boycott and Lady Young of Old Scone, and the noble Lord, Lord Wigley.
It is predicted that by 2050 there will be an increase of 7 million people in the UK and our water level supplies will be down by 15%. Indeed, a recent report from the climate change adaptation sub-committee said that tackling water metering is one of the issues that we need to address urgently, that it would deliver some of the best cost-benefit ratios and that the sooner we started tackling it, the better. We need to do it so that there is enough water for people and for our rivers; I am sorry that the noble Lord, Lord Chidgey, and the noble Viscount, Lord Trenchard, are no longer in their place, because clearly our chalk streams also need all the water they can get. It is right for tackling our climate change emissions because heating water in homes accounts for 4% of total greenhouse gas emissions. Equally, farmers, whom we heard from so eloquently in last debate, need the water to maintain successful farming and other business. We need the Government to act.
I was therefore pleased to see the announcement in the Secretary of State’s Written Statement in the House of Commons last week that the Government intend to introduce mandatory labelling on the water efficiency of household appliances. That is a positive step and I congratulate the Government on making it but, as the noble Baroness, Lady McIntosh of Pickering, so eloquently said, we will not make the cuts we need in amounts of household water—down from around 142 litres to 110 litres per person per day, which the Government say they want—unless we have labelling and minimum standards, combined with changes to building regulations. It was notable in the comments of the Secretary of State last week that he did not definitively commit to minimum standards or changing building regulations. There was a vague date and “We might look at it in the future”. We cannot get the figures we need without those.
Frankly, I am coming to the conclusion that the Government will not go anywhere near changing houses, because of the influence of various property developers. The noble Lord, Lord Teverson, who is not in his place, made a point in the debates last week about the influence of Taylor Wimpey on this Government and on housing developments. It is a scandal that we are not building houses that are carbon efficient and water efficient now. We are leaving the tab to be picked up by the environment, in the future, and the Government should be ashamed of that.
I partially congratulate the Government on taking up part of my amendment on labelling appliances but they have made no commitments on compulsory water metering. I raised this back in 2014 with an amendment to the then Water Bill. That is the issue that the noble Lord, Lord Cameron, spoke so passionately about. I say to the noble Baroness, Lady McIntosh of Pickering, that when you are a junior partner in a coalition, you do not always get what you want, whether about water abstraction or metering.
Since then, people who are more significant than me have added their voices to the cause for compulsory water metering. In addition to the noble Lord, Lord Cameron, the Climate Change Committee is now saying we must introduce compulsory metering. The majority of respondents to the 2019 Defra consultation on reducing household waste supported compulsory water metering, and even the National Infrastructure Commission, which is not well known for supporting measures in this area, is in favour. I will not repeat the figures that were so well articulated by the noble Lord, Lord Cameron of Dillington, but will say that, at the moment, only half of UK houses are on compulsory water metering. We need to reduce usage hugely, and the only way to do it is through compulsory metering.
I ask the Minister if he can give the Committee any idea how the Government intend to meet their target of 110 litres per person per day, if they do not accept all the recommendations of my Amendment 189.
Baroness Altmann (Con) [V]
My Lords, I have added my name to Amendments 188A, 188B and 188C in this group, which are also in the names of the noble Lord, Lord Cameron of Dillington, and the noble Baroness, Lady Parminter. I also add my support to Amendment 188 in the name of my noble friend Lady McIntosh of Pickering. These amendments have already been extremely well explained, but I will add a couple of points.
The noble Lord, Lord Cameron, suggested that metering is the fairest way of charging. I completely agree on that. It is important to note the improvement in water usage that has occurred when metering has been installed. Therefore, controlling the supply and use of water is a major step forward in trying to ensure that our water supply is sustainable.
Baroness Young of Old Scone (Lab) [V]
My Lords, I put my name to Amendment 189 of the noble Baroness, Lady Parminter, on domestic water efficiency. I understand that the Government are committed to water efficiency standards and labelling, as signalled in their recent ministerial Statement on reducing water demand. The Government’s helpful brief on the water issues in the Bill says that they are currently considering the most suitable and effective mechanism for water efficiency labelling. This amendment does the job for them. I hope the Minister accepts it and makes swift progress to tackle the demand side of the supply-demand balance.
For too long, the water products industry has dug in, dragged its heels and resisted labelling. I remember being involved in endless discussions on water efficiency and labelling products 15 years ago. We are drinking in the last-chance saloon—if that is not a pun in the context of water.
As I said earlier on the Bill, our average water consumption has barely changed over the last 15 years. The Government have a target of at least 125 litres and preferably 110 litres per person per day. The national average is currently 142 litres, so we have a way to go. Reducing water use, both cold and hot, reduces greenhouse gas emissions created by water processing and heating, so there is a double benefit. Voluntary schemes have not worked. Research and evidence from schemes already in place have shown that mandatory water efficiency standards and labelling water-using products could reduce household consumption by as much as 20%. It is a no-brainer and has been for 15 years or longer. Pushback from the manufacturers needs to be put in its box and there needs to be better join-up between Defra and BEIS. I ask the Minister to just do it.
Smart water metering is in that category too, having been shown to deliver significant water savings of around 17%. Meters can help water companies to detect and fix leaks, and customers to understand and manage their water use and reduce their carbon impact. At the current rate of water meter rollout, we will reach only 83% of homes by 2045, which is not exactly speedy; we need 1 million smart meters a year. Reducing water demand means avoiding environmental damage and the high cost to consumers from major water infrastructure, such as reservoirs. You know it makes sense, Minister; accept this amendment and just go for it.
Lord Cormack (Con)
My Lords, I can be very brief because I have great sympathy with most of the amendments before us. The amendment that the noble Baroness, Lady Parminter, spoke to briefly but eloquently should commend itself to my noble friend. I hope he will be able to give some encouraging comments on that. Water metering is clearly essential and must be brought into effect as soon as possible. In the context of this Bill, I think the Parminter amendment has a great deal to commend it.
Baroness Boycott (CB)
I am pleased to support the very simple but very important amendment from the noble Baroness, Lady Parminter. In 2009, the Environment Agency said that all houses in London and the south-east should be fitted with water meters by 2015 and that the rest of the country should have a water meter by 2020. Well, here we are in 2021.
I shall not repeat all the excellent stats that people have given. We are indeed the only European country without this facility. My sister was here from Denmark, and remarked again how astonishing it was. It is, of course, the fairest way for people to pay for water, and it is culturally important, because then we realise that water is a valuable commodity—indeed, so valuable right now that I read last week, to my horror, that in northern California the water shortages are so severe that farmers in the north are selling water to farmers in the south for their avocados, almonds and oranges. It is actually more economical to farm water, which would almost be funny if it were not so extreme.
I have a couple of final points. The Climate Change Committee is incorporating in its carbon budgets the assumption that domestic water use will decrease. For example, the introduction of low-flow showerheads could lead to 5% less heat demand and thus lower electricity demand. It is very good news that our appliances will be better labelled in future.
It is also a really important amendment, as we as a nation must adapt to using less. Hose-pipe bans are very common all over the south-east in the British summer but, unless we try to have limitations on how household appliances are used and how often, which would be impossible to enforce, we need some way of using less water. As the noble Baroness, Lady Young, said, let us make no further ado and bring this in right now.
Lord Curry of Kirkharle (CB) [V]
My Lords, I very much support the purposes behind this group of amendments, and I support many of the amendments. The quality and management of water is one of our most important strategic priorities, as has been reinforced numerous times in debate this week. I appreciate the reassurance given by the Minister that he agrees with this.
I will first comment on Amendment 189 in the name of the noble Baroness, Lady Parminter. I live in Northumberland, and we are extremely fortunate that we rarely have a shortage of water. Kielder Water is just up the road from where we live, but even in the north-east there are occasions during prolonged periods of dry weather when reservoirs can fall to quite scary levels. The truth is that we are very profligate with this precious resource called water.
Other members of this Committee will have been to Africa, as I have, and visited other parts of the world in which water deficiency is a massive issue and every drop of rainwater is conserved, as was referred to earlier in the debate on the need to capture grey water. I shall not comment on that, but it is important that we take pressure off our water supplies wherever we possibly can, domestically as well as in businesses.
Some 50% of our households and many businesses have absolutely no idea how much water they are using, so it is essential that we adopt the measures outlined in this amendment to improve water efficiency, and in particular that we introduce the compulsory installation of smart meters. The noble Lord, Lord Cameron, articulated convincingly why we need to do this, supported by comments from the noble Baronesses, Lady Parminter, Lady Young of Old Scone and Lady Boycott, so I will not repeat the arguments except to say that, if you cannot measure it, you cannot manage it. As has been stated, until households and businesses know how much water they are using, they are unlikely to reduce usage and improve the efficient utilisation of it.
The amendments in the name of the noble Lord, Lord Cameron of Dillington—Amendment 188A suggesting the establishment of a technical advisory group and Amendment 189A, which requires the Government to prepare a water strategy—are very interesting and well worth consideration. In my view, a water strategy, as proposed, should be extended to address the quality of water and the management of water.
I was one of those who took part in the Water Bill in 2014, but this is a different issue and is not addressed in the Water Act. It is a huge issue of the highest priority. Without a co-ordinated water strategy that involves all the key bodies, demolishes silos and requires both departments and agencies to engage in meeting agreed targets on water quality, conservation and usage, we are unlikely to address the serious challenges that we face. Is it too ambitious to expect the office for environmental protection to work with the Environment Agency, Natural England, the drainage boards, the water companies and Ofwat, together with Defra—particularly in its application and targeting of the ELM scheme—and other departments to rise to this challenge? A water strategy should be seriously considered, and I wish I had thought of this in more detail before these amendments were tabled. I ask the Minister to give this serious consideration.
Baroness Jones of Whitchurch (Lab)
My Lords, I am grateful to the noble Baroness, Lady McIntosh, for tabling this amendment and to all noble Lords who have spoken. I add to the noble Baroness’s plea for a meeting with the Minister. Everybody except us seems to having Ministers, so she is not alone. Perhaps at some point the Minister can respond to some of our asks as well.
I return to the issue at hand. We are concerned that, as it stands, Clause 83 gives the Government extended powers to amend the regulations implementing the EU water framework directive. This directive was hard fought for and is an iconic part of our continuing EU water quality standards, so the Minister will understand why we are suspicious of this proposed change. Of course, we understand that the composition of chemical pollutants might change over time, and there is an urgent need to manage the impact of these pollutants. The Environment Agency’s own data show that not a single lake or river in England that has recently been tested has achieved a good chemical status. This has an inevitable negative impact on wildlife as well as being a threat to public health, particularly as a result of the new trend towards wild swimming.
We have to be assured that any change will be absolutely based on the best technical and scientific standards and not used to dilute our current high standards of regulation. This is why we support the amendment from the noble Lord, Lord Cameron, which would create a broad-based statutory advisory group to advise on these changes. It is also why we support his amendments to seek advice from the new OEP and to require the regulations to be approved by the affirmative procedure. In this way, we can be assured that the standards and targets can be altered only in line with the best scientific advice and following appropriate stakeholder consultation. It would lay to rest our concerns that the Government seem to have a very different interpretation of non-regression of environmental standards from what we understood during the course of the withdrawal Act.
We also very much thank the noble Baroness, Lady Parminter, for tabling Amendment 189. We have had a very good debate on this, and she has set out a compelling argument as to why it is necessary. All the evidence shows that we are running out of water and wasting water at alarming rates. The Environment Agency has warned that within 25 years England’s water supply will simply not meet demand. We have to start dealing with it as the scarce and valuable resource it really is, so it is important that we incentivise manufacturers to make water-efficient appliances, in the same way that they are incentivised to make energy-efficient appliances.
Lord Goldsmith of Richmond Park (Con)
Before I turn to individual amendments, I want to assure noble Lords of our commitment to improving water quality. Our rivers and lakes are an essential and valuable part of our countryside and urban landscapes, and the power we are taking in Clause 83 is to enable us to continue to monitor their health, so that we can better improve it.
I will begin with Amendment 189A from the noble Lord, Lord Cameron, so that I can assure noble Lords of the Government’s strategic approach to this issue before elaborating on the specifics. The Government fully agree with the intent; that is why we are already taking a strategic approach to the management of the water environment, in particular through river basin management plans. Additionally, through the Environment Bill, we are introducing the requirement to create a new, legally binding target for water quality. This will drive forward action needed to improve the water environment.
River basin management plans establish the goals we set for our water bodies and set out the steps required to meet them, guiding investment and action. The plans are updated on a six-yearly cycle, following extensive consultation. The Environment Agency will consult this year on the draft river basin management plans covering the period until 2027, and I encourage all interested parties to engage with that process. The 2015 plans confirmed £3 billion of investment over the period to 2021. In England this has led to more than 11,000 kilometres of surface water being enhanced and a further 2,349 kilometres being protected.
We are also working at a strategic level with the Environment Agency, Ofwat and water companies to ensure that the water companies’ investment through their next periodic review delivers the best possible outcomes for the environment. Requiring an additional strategy would therefore be unnecessary.
I thank the noble Baroness, Lady McIntosh of Pickering, for Amendment 188 on priority substances and the price review. I will be very happy to speak afterwards to arrange a meeting with her. On that point, I was a bit surprised by the comments from the noble Baroness, Lady Jones of Whitchurch, about meetings. I have just checked with my office, and we have had numerous meetings to discuss the Bill. We have had at least three, including with the Secretary of State. I have had five with groups of opposition Peers. The noble Baroness herself told me last night that we have a meeting planned for the 19th, so she clearly knows about it, and I offered another meeting in addition to that when we spoke. I hope she will reflect on her comments because they are a little misleading for the House.
On the amendment of the noble Baroness, Lady McIntosh, I would like to explain why it is critical that we have the power in Clause 83 of the Bill. The current priority substances list was frozen in our law at the end of the transition period under the European Union (Withdrawal) Act. Without appropriate regulatory change powers, the UK Government and devolved Administrations would be left operating an out-of-date list of substances and standards potentially harmful to the water environment. Section 8 of the European Union (Withdrawal) Act, which enables the UK to transfer EU Commission powers to UK Ministers by regulation, does not apply in this case so we need primary legislation to obtain the powers to update the priority substance list.
Updates to the list of priority substances, which must be tested for in the water environment, will take into account the latest scientific and technical evidence. It would not be appropriate to constrain our ability to make updates and react rapidly to emerging substances which pose a threat to the aquatic environment. Under the EU system, the list was updated by introducing a new EU directive. Data needed to be collected across the EU and, as in the case of all new directives, member states were given long grace periods to transpose updates, resulting in a lengthy process.
We can act on emerging substances much more quickly outside the EU if we do not unnecessarily prolong the process of making updates, which tying the process to the cycle of the price review would entail. Furthermore, as the noble Baroness suggests in her amendment, I reassure her that the price review already takes into account water company obligations, including those in relation to the water environment. The price review has flexibility to allow for changes in circumstances.
The Government have regularly updated key stakeholders, including the water industry, on the progress of this measure and any proposed changes to the priority substances list will be subject to statutory consultation requirements. In response to her question about consultation, we consulted on the policy of Clause 78 through the January 2019 consultation on improving our management of water in the environment but we did not specifically consult on the Explanatory Notes, which I understand is normal practice.
The noble Baroness asked about the price review and planning for water quality monitoring. Ofwat’s price review process is clearly key for water company business planning. Water companies’ current non-statutory drainage and wastewater management plans will help inform their business plans and required funding for 2025-30 to deliver them. Companies will complete their plans by spring 2023 to feed into the PR24 process. Ofwat has a mechanism that allows for consideration of additional funding requests made by companies during the price review period, but there are strict rules governing this. We are confident that companies are undertaking comprehensive assessments of their plans to set out their priorities in price review 2024, including priorities around sewerage assets to mitigate any impacts on water quality.
I turn to Amendments 188A, 188B and 188C from the noble Lord, Lord Cameron. I reassure the noble Lord that the power in Clause 83(1) will allow for only relatively narrow changes to be made to water quality standards for certain chemicals in existing legislation. For example, in 2013 the priority substances list was updated via a new EU directive. We were required to transpose into our regulations 12 new substances, and a new requirement for the EA to make provision for these substances in river basin management plans. This update also instigated biota testing for some toxic bioaccumulative substances.
This new power in the Environment Bill is critical in enabling the same kind of narrow technical changes. Changes will be informed by the latest scientific advice from the UK technical advisory group, a working group of experts convened by the EA and drawn from the environmental agencies for England, Wales, Scotland and Northern Ireland. It consults appropriate stakeholders when carrying out its work and its recommendations are published.
We designed the clause to include a statutory requirement for the Secretary of State to consult the EA before exercising this power. As the noble Lord’s amendment proposes, the Secretary of State must also consult any persons or bodies likely to be affected by the regulations. This may include water companies and environmental groups as well as, no doubt, many others. This is exactly what the Government intend to do. The OEP will not have a role in setting technical standards for water. That is not its area of expertise. The Environment Agency has deep expertise and long experience in this area, and is therefore best placed to continue this role.
Clause 29, however, does allow the OEP to provide advice to Ministers on any aspect of environmental law, so it will be able to hold Ministers to account on any changes. As such, we do not believe that it is necessary to specify the OEP as a consultee.
Regarding Amendment 188C, the noble Lord’s suggestion of a standard affirmative resolution procedure is disproportionate and unsuitable in this instance. This power can be used only to make narrow changes, subject to the extensive consultation that I have already set out, to certain water quality standards involving highly technical discussions. Indeed, the report by the Delegated Powers and Regulatory Reform Committee did not feel the need to highlight this delegated power as one which needed stronger parliamentary oversight than the Bill currently provides for.
Finally, regarding Amendment 189 tabled by the noble Baroness, Lady Parminter, reducing household water demand is clearly a priority, as it is for the Government. This is why the Government published a Written Ministerial Statement last week on reducing water demand, announcing numerous measures that they will take forward in response to the 2019 consultation. In answer to the question asked by my noble friend Lady McIntosh, this includes plans to introduce a mandatory water efficiency label to inform consumers and encourage the purchase of more water-efficient products. We will encourage local authorities to adopt the building standard of 110 litres per person per day in all new builds where there is a clear local need, such as in water-stressed areas. We will also develop a road map towards greater water efficiency in new developments and retrofits, to be published in 2022. These measures can be taken forward without the need for new primary legislation.
To reiterate a point I made in an earlier debate about building regulations, which was picked up by the noble Baroness, Lady Parminter, we are having discussions with MHCLG, and my colleagues in Defra and I are pushing for the highest possible standards. There is a huge number of opportunities and we do not want to lose them. She is right about lobbying. As anyone who has been in government knows, lobbying happens. We all get lobbied in government. It is the job of government to discriminate between positive and less-helpful lobbying. However, when the zero-carbon homes policy was cancelled during the coalition Government, there was a lot of pushback by some of the bigger developers who found it unhelpful. They had adjusted their business models, considered what needed to happen, enjoyed the certainty and felt that it was driving innovation, so I think it was a mistake by the coalition Government. It is not always the case that bigger businesses push back on these kinds of regulations.
The Government are not currently making changes to existing rules around when people can be charged for their water use through water meters, but water companies in seriously water-stressed areas may implement wider water metering programmes where it is shown by their water resources management plans that there is customer support and it is cost-effective to do so.
The Government take the health of rivers, waterways and our wider aquatic environment very seriously indeed. A key plank of our 25-year environment plan includes improving the ecological status of our aquatic environment and ensuring that water is both clean and plentiful. I am pleased to have had the opportunity to debate these issues today. I thank noble Lords for their amendments. I have tried to provide a thorough explanation of our approach and respectfully ask them not to press their amendments.
The Deputy Chairman of Committees (Lord Russell of Liverpool) (CB)
I have received one request to speak after the Minister, from the noble Lord, Lord Randall of Uxbridge. Lord Randall? Uxbridge is offline. I call the mover of the amendment, Baroness McIntosh of Pickering.
Baroness McIntosh of Pickering (Con)
I thank all noble Lords who have contributed to the debate, especially those who spoke in support of Amendment 188.
I pay tribute to my noble friend the Minister. It must be pleasing for him to see his work on the quality of life come to life. I commend a slightly shorter report that we did on bricks and water, which goes to the point of building regulations and minimum standards. I am pleased that he is committed not only to labelling but to the work being done with the Ministry of Housing, Communities and Local Government on minimum standards. As the noble Baroness, Lady Parminter, said, that is extremely important. I share the concern of the noble Baroness, Lady Jones of Whitchurch, that Clause 83 allows a potential weakening of the EU water framework directive. I hope this will not be the case and that, if anything, we might impose higher standards, which we would wish to meet.
The Deputy Chairman of Committees (Lord Russell of Liverpool) (CB)
Before the amendment is withdrawn, apparently the noble Lord, Lord Randall, has reappeared. Lord Randall? No? He should talk to his MP.
The Deputy Chairman of Committees (Lord Russell of Liverpool) (CB)
We now come to the group consisting of Amendment 194AA. Anyone wishing to press this amendment to a Division must make that clear in debate.
Amendment 194AA
Baroness Hayman of Ullock
“Flood risk report
(1) Within 6 months of the day on which this Act is passed, the Secretary of State must lay before both Houses of Parliament a report on flood risk.(2) The report under subsection (1) must contain—(a) an assessment of the number of—(i) people, and (ii) householdscurrently at risk of flood,(b) analysis of the expected impact of measures contained in this Act (including but not limited to those relating to planning) on flood risk, and(c) proposals for further policy or legislation to mitigate or reverse flood risk.(3) In preparing the report under subsection (1), the Secretary of State must seek advice from—(a) the Committee on Climate Change,(b) the Environment Agency, and(c) any other persons the Secretary of State considers appropriate.”Member’s explanatory statement
This amendment would require the Secretary of State to publish a report on flood risk, with a particular focus on whether (and to what extent) measures in this Act will help to mitigate or reverse it.
Baroness Hayman of Ullock (Lab)
My Lords, Amendment 194AA is in my name and those of my noble friend Lady Jones of Whitchurch and the noble Baroness, Lady Bakewell of Hardington Mandeville. This amendment would require the Secretary of State to publish a report on flood risk, to help realise the potential of the nature restoration intended to be delivered by the Bill and to reduce flooding risk. Disappointingly, “flood” appears in the Bill only once, on page 188, in Schedule 10, relating to enforcement powers. It is a huge omission that an environment Bill is not seriously addressing flood risk, leaving many communities woefully unprepared to tackle flooding.
The new office for environmental protection, created by the Bill, is responsible for scrutinising government policies to safeguard the environment, but it has no powers to improve measures to tackle flooding. In the Agriculture Act, the environmental land management schemes include provisions to tackle flood risk, but this is not an issue just for farmers and landowners to manage. For example, planning and development can have a serious impact on increasing flood risk, as can how we manage our reservoirs. Currently, water companies have to manage reservoirs and take drought into account—we know that drought reports have to be prepared—but not flooding or flood reports.
The UK has a legacy of development within areas at risk of flooding from river water, surface water and groundwater. Continued development of rural and low-lying areas has led to about 6 million properties being at risk of flooding. In addition, a Defra report has predicted that this number is set to increase and identified flooding as the greatest risk posed to the UK by climate change—so why is flood risk not a central part of this section of the Bill?
The Minister may well refer to the Government’s National Planning Policy Framework, which requires local authorities to demonstrate that the issue of flood risk has been considered as part of the planning process, through the flood risk management hierarchy. Alongside the NPPF, the planning practice guidance on “Flood risk and coastal change” sets “sequential” and “exception” tests and thresholds to protect property from flooding, which all local planning authorities are expected to follow. Where these tests or thresholds are not met, new development should not be allowed. But none of these recommendations means that developments or redevelopments in flood risk areas will not be approved. The planning process is there only to ensure that flooding is taken into account in development proposals.
In your Lordships’ House, in response to a Written Question in February 2016, the then Parliamentary Under-Secretary of State for Communities and Local Government, the noble Baroness, Lady Williams of Trafford, said:
“Development can not be ruled out in high flood risk areas”.
I know of too many cases where a developer has been able to build in flood risk areas, despite serious local concerns, offering mitigations to ensure that the development would not flood. However, flood waters have to go somewhere, and the outcome is too often the flooding of properties that have never experienced this before.
I am particularly concerned that the Government’s new planning proposals will only increase the numbers of homes being built in areas of flood risk—a number of noble Lords mentioned this concern in earlier debates. We could end up with new houses and other developments being built in the wrong places, and, once built, they will present a long-term and continuing flood-management problem. Government must make sure that planning policy keeps up with climate change and that, despite the housing shortage, planning must take increasing flood risk into account in deciding where new homes should be built.
A key problem in effectively managing flood risk is the lack of an integrated approach to catchment management and the number of regulatory bodies: the Environment Agency is cash-strapped, the water companies are regulated by Ofwat—with a focus on keeping bills down—and farmers are regulated by Defra and incentivised through the CAP and now ELMS. The Environment Bill is an opportunity to pull together all the different strings of the water sector to have an integrated catchment approach to tackling flood risk.
Floods happen; they always will. The question is how to limit their impact. When serious flooding occurs, as it did in 2015 in the community where I live, and in many others around the country, everyone works flat out to do whatever they can during the crisis. Government praises everyone involved and promises the moon—but terms like “unprecedented” and “climate emergency” do not alter the fact that the current approach to tackling flooding and future flood risk is clearly not fit for purpose.
Understandably, the main focus when extreme flooding happens is its impact on human lives and livelihoods, but it is also an environmental disaster. Floods increase surface run-off, exacerbating erosion and introducing more soil, organic matter and pollutants into watercourses. Studies have shown that plant biomass and the abundance of both vertebrates, such as fish, and invertebrates can be dramatically reduced by extreme floods. Noxious hydrogen sulphide fumes and lead poisoning are among the threats from floodwater contamination. Many animals are at risk of being poisoned by floodwater redistributing pesticides and toxic chemicals from industrial sites. Hibernating bumblebees, ground beetles and caterpillars are at risk of dying at greatly elevated rates because the floods and heavy rainfall are drowning them and interfering with their hibernation. Hedgehogs are already undergoing a national decline, and floods just put extra pressure on them: unless they get to areas of high ground, they drown.
We need an integrated approach to flood management that works with the environment to manage land and water in ways that benefit both people and our ecosystems. Why are the Government not using the Environment Bill as the opportunity to deliver this? I beg to move.
Baroness McIntosh of Pickering (Con)
I am delighted to speak to and support Amendment 194AA, on a “Flood risk report”. Too often, where there have been major floods, as there were many times in the 2000s and since, people tend to forget and Governments fail to take major action once the flood waters have receded, so I echo what the noble Baroness, Lady Hayman, said in moving her amendment.
I make a plea to my noble friend the Minister, particularly on the issuing and updating of planning guidance. I mentioned earlier the fact that, at the moment, developers are building on flood plains and not making the buildings secure, flood-proof and resilient to floods. It is only when the householder makes a claim that they find out that it will not be met, in part or in full—particularly if they bought without a mortgage, in which case they probably have no idea that they are not covered by insurance.
On many occasions, in both the other place and here, we have tried to make it a requirement for developers to have regard to building sustainable drainage systems—SUDS—to take surface water away from sewers and combined sewer outflows. This amendment is an opportunity to ask my noble friend if the Government have moved on this and whether they plan to update and amend planning guidance to make SUDS the preferred option for managing surface water in all new developments.
I make the simple suggestion of empowering sewage undertakers to discharge rainwater downpipes, with nothing nasty in them, into local soakaways, as opposed to the current legislation, which requires a new public sewer to be provided to take the flows away, immediately mixing them with sewage—this seems a wanton wastage of resources and infrastructure. I hope that my noble friend will look favourably upon this.
Such a flood risk report as this amendment would allow for would give the opportunity for my noble friend and his department to review the partnership approach. As he mentioned earlier, the environmental land management schemes—ELMS—will allow flood prevention schemes to take place, and so allow the Government to do an audit in that regard. That is another reason I hope that, if not in this amendment, the Government will look favourably on some way of monitoring flood risk going forward.
Baroness Bennett of Manor Castle (GP) [V]
My Lords, it is a delight to follow the noble Baroness, Lady McIntosh of Pickering, whose comment about building on flood plains reminds me of the simplest, clearest explanation of why this should not happen: a flood plain is not beside the river; it is part of the river. I greatly appreciated her focus on sustainable urban drainage schemes.
I commend the noble Baroness, Lady Hayman of Ullock, for tabling Amendment 194AA, and I commend the noble Baronesses, Lady Jones and Lady Bakewell, for supporting it. Indeed, I would have done so myself, had I not simply missed it. We are talking about joined-up government here, with two critical issues that have a huge impact on people, businesses and the natural world coming together: the environment and flooding. We know that the Government talk about joined-up government thinking and nature-based solutions, but it is a great pity that, up until this point, we have not seen this added into the Bill.
Baroness Bakewell of Hardington Mandeville (LD)
My Lords I have put my name to this amendment in the names of the noble Baronesses, Lady Jones of Whitchurch and Lady Hayman of Ullock. The noble Baroness, Lady Hayman, has comprehensively introduced this amendment. I have added my name as someone who was once leader of a council, which had and still has large areas of flooding on a regular basis. In some cases, the same land and businesses were flooded year after year.
I will not rehearse the details of the flooding during the winter of 2014, but I mention that, after action was taken by the Government and Environment Agency, major works took place in an attempt to prevent flooding of such a serious nature in future. This is welcome, but is of little comfort to those who lost everything from flooding in the first place.
Flooding from rising water is devastating. It can be immediate, with a town or village and properties being submerged in a matter of minutes from catastrophic water flow from continuous rainfall and run-off from higher ground. It can also be slow and insidious, as in the case where rainfall has swollen the local rivers, and householders and the Environment Agency watch the rising water with trepidation, knowing that at some stage the banks will be breached, the muddy waters will engulf their homes, the sewers will overflow and drinking water will be contaminated. We have all seen the television coverage of such incidents, but we may not have experienced the smell, nor had to wade through the slime covering the floor of our lounge or kitchen.
The noble Baroness, Lady Hayman of Ullock, asked why flooding does not have greater prominence in the Bill and I share her concerns. The noble Baroness, Lady McIntosh, spoke of the hazards of developments on flood plains which, if built since 2009, are not covered by insurance. The noble Baroness, Lady Bennett of Manor Castle, also raised the dangers of building on flood plains. It is time that developers in this process provide their own insurance to those living in homes that they have built on flood plains. The noble Baroness, Lady Bennett, also gave some excellent examples of flood protection measures, including beavers—some have been introduced into Cornwall.
The amendment is extensive. Flood risk reports are important. The areas liable to flood are well documented and it is now possible to assess the number of people and households at risk from flooding and to take action to mitigate the risk, thereby reversing the possibility of flooding. The Committee on Climate Change, the Environment Agency, local drainage boards and others on the ground in an area should be consulted to share their first-hand knowledge with the Secretary of State in preparing flood risk reports.
The Government must take action, as this matter is very serious, and so bring some reassurance to flood risk areas that they are not forgotten and that measures are being taken to help protect them. Catchment plans are a vital tool in flood prevention measures, which are needed to protect people.
I fully support this amendment and look forward to a favourable response from the Minister on this critical issue.
Lord Goldsmith of Richmond Park (Con)
My Lords, flooding incidents have an utterly devastating impact on communities. I thank the noble Baroness, Lady Jones of Whitchurch, for raising this important issue in her Amendment 194AA and I thank the noble Baroness, Lady Hayman, for her thoughtful introduction.
The Government are committed to ensuring that our country is resilient and prepared for the challenges that a changing climate brings, including flooding and coastal erosion. The Government are taking a holistic and wide-ranging approach to flood risk, including through, for example, the England tree strategy, which will have a direct impact on flood prevention if trees are planted in the right place or if land is allowed to naturally regenerate in a way that slows the flow of surface water and increases the ability of land to absorb water. Likewise, our peat action plan will be crucial in reducing flood risk and showing that communities downstream of restored peatland are better protected and that, again, the land’s ability to hold water is improved.
I know that the noble Baroness, Lady Hayman, will agree that nature-based solutions can play a vital role in meeting flood resilience objectives in addition to so many other objectives in the Government’s 25-year environment plan at the same time. I want to thank the noble Baroness, Lady Bennett, for the examples she gave. I very much share her enthusiasm about the introduction of beavers, which has had the most extraordinary impact already.
The combination of green, blue and traditional grey infrastructure, which we discussed in detail earlier, will minimise the number of households at risk of flooding. The Bill takes important steps to help achieve this. It amends the Land Drainage Act 1991 to make it easier to make new internal drainage boards, which play a key role in managing water levels, reducing flood risks, supporting local growth, and protecting critical infrastructure in urban and rural areas.
Furthermore, by placing a statutory duty on sewerage companies to produce drainage and sewerage management plans, we are addressing long-term drainage planning and capacity, which helps to address sewer and surface water flooding. Section 13(1) of the Flood and Water Management Act 2010 already requires risk management authorities, including sewerage companies, to co-operate with other risk management authorities such as the Environment Agency and lead local flood authorities. But we will also make secondary legislation to ensure that the preparation of a drainage and sewerage management plan is captured as a flood risk management function to ensure that the new plans form part of a holistic response to flood risk.
I should be clear that the Bill has not been designed with the sole intention of addressing new flood risk legislation. The Flood and Water Management Act 2010, for instance, sets out the legislative requirements for flood risk management. It includes a duty on the Environment Agency to produce a report in relation to flood and coastal erosion risk management under Section 18. The Environment Agency report on flood and coastal erosion risk management is published every year and includes information on flood risk and progress to tackle that risk.
The Government are also taking ambitious non-legislative action to address flood risk. I mentioned the tree plan and the peat plan earlier, but we are also investing a record £5.2 billion to build 2,000 new flood defences over the next six years. This will better protect 336,000 properties from flooding and coastal erosion. In addition, the Government are investing a further £170 million to accelerate the building of 22 flood schemes across the country.
Alongside this, a further £200 million is being invested in the flood and coastal resilience innovation programme, which is helping over 25 local areas to take forward wider innovative actions that improve their resilience to flooding and coastal erosion. Pioneering projects, led by local authorities and delivered over the next six years, include apps which alert residents to flooding, permeable road surfaces to improve drainage and schemes to protect vital sand dune beaches.
Last July, the Government also published a policy statement setting out the Government’s long-term ambition to create a nation more resilient to future flood and coastal risk. This aims to reduce the risk of harm to people, the environment and the economy, and aims to ensure that our country is better protected and better prepared to reduce the likelihood and impacts of flooding and coastal erosion. It was informed by advice from the National Infrastructure Commission and the Committee on Climate Change.
The Government also have a statutory duty to respond to the Committee on Climate Change’s annual progress reports. The most recent report by the committee, published on 24 June, acknowledges that the government’s policy statement provides
“the required policy basis for increasing the level of ambition in tackling flood risk.”
The policy statement includes five policies and over 40 supporting actions which will accelerate progress to better protect and prepare the country against flooding and coastal erosion. Alongside the record investment I mentioned earlier, we are strengthening the reporting of progress towards the Government’s goals by spring 2022 so that it is clearer and more accessible.
The Government are also developing a national set of indicators to monitor trends over time to better understand the impact of policies. Indicators and reporting will include the local picture, providing the information needed to further drive progress at a local level and recognising the different challenges faced in different areas.
I hope this has reassured the noble Baroness and other noble Lords who have spoken passionately about this issue that the Government share their concerns, and that we are already taking significant steps to deliver on our plan for greater resilience to flooding. I respectfully ask that she withdraw her amendment.
Baroness Hayman of Ullock (Lab)
I thank the noble Baroness, Lady McIntosh of Pickering, for her kind words and support and for the concerns she raised about new development, which I worry greatly about. She also mentioned insurance, as did the noble Baroness, Lady Bakewell of Hardington Mandeville. I know this does not come under the Minister’s brief, but it is worth saying that Flood Re, which is designed to cover properties that flood, does not cover new homes built after 2019. It does not cover multiple occupancy of more than 10 homes. It does not cover businesses, which is particularly a problem in areas such as Cumbria, where I live, for small bed and breakfasts. The reason that it does not cover new homes built after 2019—I know this following a meeting with the chief executive of Flood Re—is because it was considered that planning rules meant that no home built after 2019 could flood, because the rules would stop homes being built in areas that would flood. That is absolute nonsense; homes built after 2019 flood. This really needs to be looked into. I know it is not in the Minister’s portfolio, but I would be grateful if he could raise it with his colleagues in the appropriate department.
The Deputy Chairman of Committees (Baroness Watkins of Tavistock) (CB)
We now come to the group beginning with Amendment 194B. Anyone wishing to press this or anything else in this group to a Division must make that clear in debate.
Amendment 194B
“Biodiversity gain in nationally significant infrastructure projects
Schedule (Biodiversity gain in nationally significant infrastructure projects) makes provision about biodiversity gain in relation to development consent for nationally significant infrastructure projects.”Member’s explanatory statement
This new Clause introduces Lord Goldsmith’s proposed new Schedule relating to biodiversity gain.
Lord Goldsmith of Richmond Park (Con)
In moving government Amendment 194B, I will speak to all government amendments consequential to it. I am pleased to be introducing today a new biodiversity net gain requirement for nationally significant infrastructure projects. This complements the existing provisions in the Environment Bill for biodiversity net gain for all other development and fulfils the Government’s recent commitment in response to the Dasgupta review. This will ensure that new nationally significant infrastructure projects, such as new roads, railways or airports, will contribute to our vision of a nature-positive future.
These government amendments will also enable the Government to extend net gain to major projects in the marine environment in the future, once a suitable approach has been developed, so that developments at sea will be required to increase marine biodiversity as well. I hope that this is welcomed by the noble Lords, Lord Teverson, Lord Randall and Lord Blencathra, in particular, who have spoken with great passion on the protection of the marine environment. The detail of the requirement will be brought forward through policy statements following consultation, and we will waste no time in implementing this measure. We will publish a consultation later this year, which will include proposals for an appropriate transition period and a range of other important details.
In addition, I am pleased to say that the new version of the biodiversity metric for development under the Town and Country Planning Act was launched earlier today by Natural England. It is accompanied by a draft small sites metric, which is designed to provide process simplifications for small sites aiming to achieve biodiversity net gain. We will be looking at the responses to this draft small sites metric and wider engagement later this year, and will consider further opportunities to simplify net gain for small developments.
I know the noble Lord, Lord Blencathra, is due to speak to this group, and that the net gain clauses were the subject of one of the recommendations of the report on the Bill from the Delegated Powers and Regulatory Reform Committee. I am therefore pleased to take this opportunity to inform him that the Government will be accepting all the recommendations of his Committee. I will write to the Committee today, and of course I will deposit a copy in the Library, and I will table a couple of government amendments on Report.
To return to the subject at hand, I look forward to hearing contributions from noble Lords about biodiversity net gain more broadly as part of this debate. I thank all noble Lords—there are too many to name—who spoke at Second Reading in support of extending biodiversity net gain to nationally significant infrastructure projects. I hope they will take some comfort in knowing that they have played a part in moving the Government and that the Government have listened to them. I beg to move.
Amendment 194C (to Amendment 194B)
Baroness Hayman of Ullock
Member’s explanatory statement
This amendment, alongside others to amendment 201A, extends the application of Biodiversity Net Gain to major infrastructure beyond the nationally significant infrastructure regime, to include projects consented through hybrid Bills and any future consent mechanisms.
Baroness Hayman of Ullock (Lab)
My Lords, in moving Amendment 194C I shall speak also to Amendments 201AZA, 201AZB, 201AZC and 201AZD, in the name of my noble friend Lady Jones of Whitchurch, and Amendment 196, in the names of my noble friend Lady Jones of Whitchurch, and the noble Baronesses, Lady Parminter and Lady Bennett of Manor Castle, and the noble Lord, Lord Teverson. I also express my support for Amendment 198A, in the name of my noble friend Lady Young of Old Scone.
Clause 92 allows developers to purchase credits from the Secretary of State to satisfy biodiversity obligations imposed as a condition of planning permission. Revenues raised through the purchases are then used to create and improve nature sites. Our Amendment 194C would amend government Amendment 194B, introduced by the Minister, and is designed to enable a discussion around extending the application of biodiversity net gain to major infrastructure, beyond the nationally significant infrastructure regime, thereby including projects consented through hybrid Bills and any future consent mechanisms.
Currently, environmental considerations are too often considered a constraint in the planning system. A fundamental shift is required to enable the planning system to play a fuller part in nature’s recovery, protecting our finest wildlife sites and connecting them into a coherent network. We welcome the planning reforms proposed in Part 6, including the imposition of biodiversity gain as a condition of planning permission and the creation of local nature recovery strategies. Developers, planners and land managers will be mandated to leave biodiversity in a better state than before, and now government Amendment 194B and new Schedule 14A include biodiversity net gain for nationally significant infrastructure projects—NSIPs, as they are known.
Despite the explicit commitment in the 25-year environment plan that net gain would cover both housing and infrastructure, the Government’s amendment does not cover other major infrastructure projects granted outside NSIPs. This would include HS2 and major housing developments. I know the Government have given us assurances about HS2, but this kind of development will not be covered in legislation as it stands, and simple assurances are not good enough, either for this project or for those in the future.
The August 2020 planning White Paper proposed using development consent orders, DCOs, to give permission to large housing developments. It has also been suggested that such housing-focused DCOs could sit outside the NSIP regime, which could mean they are excluded from biodiversity net gain. Our Amendment 194C would extend the proposed legislation, so that the biodiversity net gain principle applies to all major infrastructure projects.
Amendments 201AZC and 201AZD would carry this widened scope through into new Schedule 14A. Amendments 201AZA and 201AZB would ensure that biodiversity net gain applied to non-NSIP major infrastructure projects, to keep to key commitments; namely, the compulsory use of a biodiversity metric and the maintenance of biodiversity gains in perpetuity. It is vital that funds raised from the biodiversity credits system are used to deliver meaningful biodiversity net gain in a timely way, and that these are maintained in perpetuity. The time-limited nature of biodiversity net gain as proposed in the Bill is a significant flaw. Concerns have been raised that developers may be more likely to turn to biodiversity credits rather than local biodiversity gain for a project. This would result in local communities losing out. Developers need to fund habitats over the long term and maintain them, otherwise they simply will not thrive.
Under Schedule 14, habitats delivered through biodiversity net gain could be ploughed up or degraded after 30 years. This would destroy any ecological gains and carbon storage benefits. This goes against the grain of ecological best practice, which emphasises the need to let nature recover for the long term. Habitat restoration projects now often have end dates a century or more away. A requirement to maintain a habitat for only 30 years undermines the intention of compensation for habitat destruction. The lifetime of developments covered by net gain is likely to be much longer than 30 years, and land use changes are likely to be more permanent, so the compensatory habitat should be permanent too.
In the Public Bill Committee, last November, the Minister in the other place, Rebecca Pow, acknowledged the importance of maintaining biodiversity gains for the long term to provide
“long-lasting benefit to wildlife and communities”.—[Official Report, Commons, Environment Bill Committee, 17/11/20; col. 511.]
However, she did not support a requirement for habitats to be maintained in perpetuity, claiming that a requirement to maintain them for longer than 30 years could reduce the amount of land available to host such habitats, due to some land ownership being time limited and to landowners being reluctant to maintain sites in perpetuity. This argument does not seem particularly convincing and, to me, makes the whole approach look completely half-hearted. If land can be found and agreements reached to maintain buildings on it in perpetuity, as is the case with most development, so too can land be found and agreements reached to maintain biodiversity net gain habitats in perpetuity. If we do not do so, ultimately we could end up with overall losses.
Lord Blencathra (Con)
My Lords, I declare my interests as on the register. It was an absolute pleasure to hear my noble friend introduce this vital new clause, which is quite superb. It is also amazing to hear that he has accepted every recommendation of the Delegated Powers and Regulatory Reform Committee, which I am privileged to chair. I think, in all my time in the House, I have never known a Minister or a department accept every single recommendation. I have already said to another very big, powerful government department that if it wants to see how to do delegated powers properly, it should look at the Defra Delegated Powers Memorandum and see the way in which it has drafted a very large Bill, in eight parts, covering an awful lot of delegated powers, and done so with proper parliamentary scrutiny. I commend that to every other department.
Officially, I shall speak to Amendments 200 and 201 on biodiversity net gain—or nature net gain, as I would love to have it called—and to support my noble friend the Minister and his wonderful, large new clause. As someone who passionately believes in recovering our nature, I consider this to be one of the most important clauses in the Bill. When we add up the clauses on biodiversity targets, local nature recovery strategies, species conservation targets and now 10% minimum net gain, this is the greatest step forward this country has ever taken to bend the curve of nature loss and begin full-scale nature recovery. The only principal differences between my noble friend’s amendments and mine are that mine attempt to apply biodiversity net gain to the first two legs of HS2 and the Minister’s amendments are much longer with a lot of detail—that always makes me slightly suspicious, of course. However, my noble friend has pulled off an absolute blinder in getting other departments to agree to extend net gain to all national strategic infrastructure projects.
A few months ago, I and others made the case in this Chamber that 10% net gain be extended to HS— the Birmingham to Crewe leg—but that was resisted by the DfT. To be fair, the excellent Transport Minister in the other place, Andrew Stephenson MP, has been pressing HS2 to go further than “no net loss”—the current policy—and it seems to be moving in that direction. I want the Government to make sure that HS2 follows up on the welcome aspiration of a commitment to BNG.
I hope that will not be a watered-down version of net gain—it should be open, transparent and open to scrutiny. Net gain should be net gain, whether its supported by legislation or not. While we in this Committee may be urging my noble friend to go faster or do more, we must acknowledge that he and Defra have persuaded the Treasury, BEIS and DfT to accept 10% biodiversity net gain for all national strategic infrastructure projects. Quite frankly, that is an astonishing achievement and I did not expect to see it. It is important that NSIPs can and should deliver BNG to at least the same standards as those expected for other developments.
I welcome the reference to NSIPs having access to the statutory biodiversity credits scheme in the case of market failure. Natural England is currently developing this credits scheme. I like how BNG is to be embedded within national policy statements through biodiversity net gain statements and that there are mechanisms to be put in place for those sectors where the NSIPs have yet to be updated or where there is no national policy statements. I consider that this will allow for sufficient flexibility to allow biodiversity net gain to be tailored to any sector requirements if and where needed.
I am delighted to see it also extended to marine. That issue is contained in my amendments and I thought that I would have to argue the case for it. All I need to do instead is say, “Well done, Minister.”
That is enough praise—now for a few little queries. As I said at the beginning, I am always suspicious when we get a massive new clause to deal with what is really a simple matter of amending the schedule. First, I note that the amendment allows for developments to be excluded from this requirement by the Secretary of State. I cannot see grounds for granting such an exclusion and would not wish to see it enacted. However, I suspect that it is perhaps one of those safeguards Defra had to offer in order to get the other departments to sign up to BNG in the first place. I hope that it is merely a comfort blanket for the Treasury.
I hope that the requirement for NSIP net gain will be the same as for TCPA schemes. I would like to be reassured on this. Also, there is no commitment to a minimum period in which the biodiversity net gain must be secured on or off-site in the legislation. TCPA schemes are required to legally secure biodiversity net gain for a minimum of 30 years. I would expect NSIP schemes to secure outcomes for at least the same period, if not longer. Will my noble friend assure me that this omission is simply because the Government expect these schemes to last for evermore and thus a 30-year requirement is not necessary? I cannot imagine that in 30 years’ time any Government would consent to NSIP net gain schemes being ploughed up. Of course, the better guarantee of schemes lasting more than 30 years is conservation covenants—an excellent innovation in the Bill that we will come to in due course.
I note that there is reference to the use of alternative metrics other than the one developed by Natural England, metric 3.0, for use by TCPA developments. I can see no reason why NSIPs should not use the same metric. Any alternative metrics developed would mean that one NSIP’s 10% BNG would not necessarily be comparable with another’s. The current version of this metric is in use by major infrastructure delivery bodies such as Network Rail, Highways England, National Grid, et cetera. Of course, as my noble friend has said, no metric currently exists for marine developments; these will require a specific approach to be agreed on, and then some statutory instruments made in due course. It is a complicated area; it is better we get it right than rush it.
Finally, I note that there is no requirement for land delivering NSIPs’ biodiversity net gain to be registered on the national net-gain register developed for TCPA schemes. As I understand it, the statement by the developers must set out the gain to be achieved and how it is to be recorded. If they do not use the same register as the TCPA then, even if they are publicly available elsewhere, that is an unnecessary hassle. I would expect to see all terrestrial and intertidal NSIPs using the national net-gain register. There is nothing about the design of that register that would preclude its usage by such NSIP schemes. Furthermore, as quasi-government-funded projects, I cannot see an argument why there should be any reason why an NSIP should not see its net gain registered in a public and transparent manner in the same way that we expect private developments to be. NSIPs and TCPA schemes will both be engaging in the same net-gain market and it is critical that each is held to the same high standards that having net gains registered on the national register will provide for.
The only exception I can see to the above is an argument possibly requiring a different mechanism for marine NSIPs. At present, the register has been designed for terrestrial and intertidal schemes, and it does not cover sub-tidal. However, as soon as there is greater clarity about the nature of marine net-gain schemes I think that Defra and Natural England can discuss how the register could be adapted, and what resources would be needed to allow it to accommodate marine net gain.
With these technical queries—and they are technical queries. not criticisms—I am delighted to support this excellent new clause. I reiterate that it is an incredible achievement for my noble friend and Defra to get BNG for national infrastructure projects, and get every other department, including the Treasury, to sign up to it. I will be happy to accept my noble friend’s amendment.
Baroness Bennett of Manor Castle (GP) [V]
My Lords, in following the noble Lord, Lord Blencathra, it is a particular pleasure to commend his Amendment 201, also backed by the noble Baroness, Lady Parminter, although my perspective on it is a little different. This is potentially one of the most important amendments that has been tabled. If we are to see biodiversity net gain actually survive and thrive, we should look at the last paragraph of the lines that would be left out by Amendment 201:
“Paragraph 13 does not apply in relation to … development of such other description as the Secretary of State may by regulations specify.”
That is a get-out clause for the Government. The noble Lord, Lord Blencathra—perhaps being very charitable and coming from a slightly different political perspective —said, “This is perhaps just a comfort blanket for the Treasury.” I think it is a get-out-of-jail-free card that simply cannot be allowed to remain in the Bill. That is absolutely crucial.
This is a very long list of amendments, and amendments to amendments, so the easiest way of approaching it might be to run through them chronologically. I am happy to commend all the amendments in this group, including the government amendments. I agree with the noble Lord, Lord Blencathra, that the Minister can be proud of the additions that are here. This is a very clear sign that campaigning works: we know that a great many NGOs, campaign groups, individuals and Members of your Lordships’ House have been working very hard to ensure that biodiversity net gain covers our nationally significant infrastructure projects. There is real progress in government Amendment 194B. However, the number of amendments shows how much that still needs to be strengthened.
Running through some of the most significant of those, and those to which I have added my name or tabled myself, I begin with Amendment 196 in the name of the noble Baroness, Lady Jones of Whitchurch, also signed by the noble Baroness, Lady Parminter, the noble Lord, Lord Teverson, and myself. Obviously,
“maintained for at least 30 years”
is grossly inadequately in the kind of circumstances that we are talking about. As noble Lords have already said, the destruction is going to effectively be permanent. If we are seeing replacement structures and natural conditions put in, they have to continue indefinitely. Thirty years, in terms of nature, is merely a blink of an eye.
Amendments 198 and 199, both of which appear in my name—also kindly backed by the noble Lord, Lord Teverson—seek to ensure that what is done in securing biodiversity gain continues. Amendment 198 refers to
“proof that sufficient funds have been allocated to implement the plan in full, including contingencies.”
As the noble Lord, Lord Blencathra, was referring to HS2, I was thinking about some horrific case studies associated with that from a couple of years ago. We saw trees—little saplings that were planted as part of HS2 offsetting plans in a very dry, hot year—left to die because it was cheaper to do that and replant them than to water them. That really is a demonstration of the way in which externalised costs and the need to ensure that biodiversity is allowed to establish and thrive have to be built into the Bill. Ensuring that the money is there is not going to guarantee that totally, but at least it is a start.
Amendment 199 strengthens the argument on sufficient funds. Of course, we know that many developers of all kinds of projects go broke. They undergo restructuring; they mysteriously disappear into offshore entities that are impossible to trace, and ownership is impossible to trace. We need to ensure that the funding for any biodiversity net gain is fully provided.
Amendment 201AB on monitoring is particularly important, and I commend those who identified the issue. It requires that an independent body be established to check the reality of biodiversity gain. Reading this, I was thinking about the practical reality of the huge issue we have with building standards, and the fact that we know that most of the buildings constructed in the UK now do not even meet our inadequate standards to which they are supposed to be built when they are actually put to the test. That is very often under a self-certification scheme. It is absolutely crucial that we have genuinely independent verification of this gain being made.
Baroness Young of Old Scone (Lab) [V]
My Lords, making biodiversity net gain a mandatory requirement for most development is a good thing, though it will need several safeguards. Extending the net gain provision to nationally significant infrastructure is welcome, and I congratulate the Minister on that amendment. However, I believe that we need Amendment 194C in the name of my noble friend Lady Jones of Whitchurch, to also include major infrastructure projects consented in other ways, including hybrid Bills, Transport and Works Act orders and whatever the new consenting mechanisms are that the Government invent in the new planning Bill. It is a pity that we have not yet seen the proposals arising from the consultation on planning. Can the Minister give us an indication of when we will see the Government’s proposals for planning? It would be extremely disappointing if major projects such as HS2 and East West Rail were not required to deliver biodiversity net gain.
I know that, latterly, HS2 has opted voluntarily to deliver biodiversity net gain on some of its later sections, if you can call being frog-marched into this by the NGOs, local protest groups and the Government a voluntary agreement. These big government-sponsored, taxpayer-supported and highly controversial projects should be like Pharaoh’s wife and be obligated to deliver the highest standards of biodiversity net gain. Of course, HS2 can never deliver biodiversity net gain as long as it is damaging ancient woodland, which is an irreplaceable habitat and therefore represents an irreplaceable biodiversity loss.
The Minister kindly wrote to noble Lords last week about HS2 in response to issues raised by the noble Lord, Lord Framlingham. His letter, alas, fuelled my concerns about the potential misuse of the term “biodiversity net gain.” He indicated that HS2 phase 2b—Crewe to Manchester—would deliver biodiversity net gain, but he then went on to say that, because ancient woodland could not be replaced, it would simply be out of the scope of the net gain objective for HS2. Therefore, HS2 will be able to boast publicly of being a net gain project, while still being the single biggest cause of damage to our declining and irreplaceable ancient woodland. This is, frankly, misleading if not mendacious. Defra, we understand, is planning a consultation, expected to start this summer, on the development of regulations and guidance on irreplaceable habitats. Can the Minister assure the House that the regulations and guidance will not allow projects that are, in reality, not delivering net gain to portray themselves as net gain projects?
Biodiversity net gain needs other safeguards. Amendment 198A in my name would make sure that existing and possibly long-standing nature sites and habitats were not simply regarded as tradeable for newly created sites elsewhere—as the noble Baroness, Lady Bennett, said, possibly quite far elsewhere—under the net gain provisions. My amendment would ensure that the mitigation hierarchy had been followed. I am sure that noble Lords read the mitigation hierarchy every night before they go to bed, but I shall explain.
The mitigation hierarchy is part of the National Planning Policy Framework and outlines a set of principles that local planning authorities should work through in determining whether to approve a planning application impacting on biodiversity. It is a sort of stepwise, catechism approach. First, developers would be asked to seek to avoid impacts on biodiversity and, if that was not possible, to minimise them and then take onsite measures to rehabilitate or restore biodiversity, before finally resorting to offsetting residual, unavoidable impacts offsite. Can the Minister assure the Committee that the mitigation hierarchy will remain a requirement of the planning system and that there will be sufficient safeguards to ensure that offsite net gain is a last, not a first, resort under the net gain and planning provisions? It is on both the net gain and the changes in the planning system that the Minister needs to assure us.
A further strengthening of the net gain provisions is required. This is pointed out by my noble friend Lady Jones of Whitchurch, supported by the noble Baronesses, Lady Parminter and Lady Bennett of Manor Castle, and the noble Lord, Lord Teverson, in Amendments 196 and 201AZB. They would require habitats created under net gain to be maintained in perpetuity rather than only for 30 years. Previous speakers have debated this. The reality is that some created habitats will only just get going in 30 years; they certainly will not have reached the richness, complexity and resilience of long-standing habitats. The Government’s carbon scheme requires woodland sites created for carbon storage to persist for 100 years, so if it is possible to get that sort of longevity for a site despite changes of hands and ownership and the length of the policy, why can we not do it for biodiversity net gain?
We must not get into the crazy position that arose in south Wales with the extension of the M5 over the sensitive wetland sites in the Gwent Levels. Compensation habitat was created but, when the M4 relief road proposals came forward 20 years later, they planned to go straight through the compensation habitat. Mercifully, the Welsh Government reacted magnificently and rejected the plans. We do not want serial decimation of net gain habitat. Can the Minister assure the Committee that habitat created in the interests of net gain will not be allowed to disappear after 30 years? Will he accept the amendment in the name of my noble friend Lady Jones of Whitchurch?
Lord Lucas (Con) [V]
My Lords, I have four amendments in this group. Amendment 201AA is about setting standards for the quality and content of information about biodiversity gain. This is an area where there are currently considerable problems. You are supposed to be able to get an expert to judge, for instance, the quality of a grassland. If you ask four different experts, you will probably get four different answers. There are no standards. There are no benchmarks.
Since we are moving to a situation of knowing what quality we are starting with and what quality we wish to end up with, we have to do this in a way that is measurable and verifiable. Therefore, I am keen that the Government should set objective and usable standards and have them in public so that people can refer to them and argue with them at the time when planning permission is being discussed and so that, 20 years down the road, we can judge whether what has been agreed is being maintained and do so consistently without having to wish for the luck of having chosen the right expert. In this context, I am keen that the state of a particular environment should be judged in the right season. It is obviously impossible in January to know what the quality of a particular bit of chalk grassland is; it has to be judged at a time of year when the plants and insects are in evidence.
Amendment 201AB is about how biodiversity gain should be audited. If we are to require something to be kept going for 30 years, somebody has to keep an eye on it. If we want that to happen, we have to provide the funds up front so that it can. I am not at all clear how the Government envisage an obligation to maintain a site being checked up on in practice.
Amendment 201AC comes back to a subject discussed previously by the noble Baronesses, Lady Young of Old Scone and Lady Bennett of Manor Castle: how we secure that these obligations are enforceable in practice. To my mind, the obligations have to stick to the land. It has to be something that is enforceable against whoever owns the land at that particular time, whether that be a freeholder or a leaseholder, so that there is always somebody with sufficient interest that they will notice that they have to do something, be aware of the consequences of a notice to improve and take action. I cannot see anything in the current arrangement that will make sure that biodiversity gain sites, particularly those that are part of the land being developed—that is, small local sites, which are not part of major biodiversity gain trading sites but little local things tucked away that will be hard to notice—are kept going. We need something that will do that. I hope that somewhere in the Bill is a requirement that biodiversity gain on those sorts of local sites should be congruent with the local nature recovery strategy. I have missed that; I have not tabled an amendment about it, but I would love to have the Minister confirm to me that that will be the case.
I very much support what has been said about making biodiversity gain exist in perpetuity. I do not think of it as unchangeable but, if something happens that damages that gain, the system should swing into action again and the person doing the damage should be required to provide additional gain elsewhere or on the same site in much the same way as if they were doing an original development. I cannot see the point in things ending in 30 years. It is pointless. It is not what we are talking about; we are talking about changing things for ever, so let us say that.
I know that my noble friend the Minister has been sent a copy of a paper by my honourable friend Bim Afolami; I hope that he will find the opportunity, now or in correspondence, to comment on it. Mr Afolami is concerned that the Government’s plans for introducing biodiversity gain are much too slow and that opportunity should be given to those authorities that want to move faster to get going straightaway. Not everyone will be in a position to do that, but some of us will be ready. I do not see the point in holding back for two years just because not everything is ready. If the Government let those of us who are ready move early, a lot will be learned from our experience that can then be built into the procedure that opens up for everybody after the initial two years.
In particular, to pick up on an amendment which we will not see, because it went down too late, from my noble friend Lord Ridley and myself, I think there is a lot to be said for enabling—authorising—the automated creation of biodiversity gain statements and suggestions for small developers. If we do not do something to really help small developers, they will be hit by very large costs relative to the size of the development in getting a biodiversity gain statement together. We need to make it easier for them, but if we are making it easy for them, we need quality, and I think the suggestions in my right honourable friend’s letter address that. I hope the Minister will be able to reassure us that small sites will not end up being low quality or we will not end up deterring small builders by imposing on them obligations which are not proportionate to the size of their development.
The Deputy Chairman of Committees (Baroness Finlay of Llandaff) (CB)
The noble Lord, Lord Kerslake, is not here, so I call the next speaker, the noble Earl, Lord Devon.
The Earl of Devon (CB)
My Lords, it is a regret that we have to group so many important amendments together due to the shortness of time and the Government’s self-imposed deadline of November for the passage of this Bill. This group of amendments raises a lot of very interesting issues, particularly the Government’s well-received extension of biodiversity net gain to nationally significant infrastructure projects, of which I too am greatly supportive.
I am equally sympathetic to the suggestion from the noble Baroness, Lady Jones, to extend biodiversity net gain requirements to other major infrastructure projects. I note, however, that the detail of how the Government’s extension of biodiversity net gain is to be delivered remains to be worked out. It does not appear that we will know details of that for some time, so we are legislating once again in something of a vacuum.
I raised this issue of uncertainty at Second Reading and was not afforded a clear response. It would be helpful if the Minister were able to explain in his response the impact he expects his amendment to have on land use within England. How much land will be required to offset biodiversity loss by nationally significant infrastructure projects, for example, in the 10 years from 2025? It will also be interesting to know how much land the Secretary of State will require to deliver the biodiversity credits to be made available under Clause 94, particularly subsection (6)(b).
The reason why this is relevant is that we have an ever-increasing demand on land use from rewilding and wildlife corridors to trees, species abundance, nature recovery and conservation strategies—the three tiers of environmental land management—as well as surging demand for housing and renewable energy, including biomass, all of which sit alongside the basic and ever-increasing needs to feed the nation on healthy and nutritious food without further degrading our environment. I am concerned that we are layering worthy environmental ambition upon ambition with the view to parading some world-leading ecological credentials to COP 26, but without giving enough thought to how we practically will deliver these targets with the very limited amount of land within our beloved island.
As to specifics, I agree with the noble Lord, Lord Blencathra, in welcoming the application of biodiversity net gain to the marine environment. This is of particular interest to the south-west of England, which offers such prospects for large-scale offshore ecosystem services, including wind, tide and wave energy, together with considerable natural capital assets within our inshore waters, foreshores and estuaries.
I would resist the efforts of the noble Baroness, Lady Jones, to introduce a perpetuity requirement to biodiversity gains. Perpetuity is a very long time and, given the pressure on land use, of which I have already spoken, we will do ourselves no favours to be tying up particular areas of land with well-intentioned obligations born at the beginning of the 21st century, when we transparently still know so little about what we need to achieve and the means by which we will get there. The only thing we can be confident about now is how little we know of the wondrous workings of nature. We should not commit ourselves to perpetual land use policies now. Rather, we will, as the noble Lord, Lord Blencathra, noted, need the flexibility of properly drafted conservation covenants, one hopes executed by deed, to which we will return in the coming days.
Finally, as always, the noble Lord, Lord Lucas, proposes a series of helpful and clarificatory amendments to Clause 93. I hope that the Minister will consider adopting them on Report. Measurable standards are going to be key to the success of biodiversity net gain.
Lord Hope of Craighead (CB) [V]
My Lords, it is a pleasure to follow the noble Earl, Lord Devon, although I am not entirely in sympathy with what he said about Amendment 196 in the name of the noble Baronesses, Lady Jones of Whitchurch and Lady Parminter, among others. I wish to say something in support of that amendment and say a word or two about Amendment 197 of the noble Lord, Lord Blencathra, about high-speed rail lines, which raises an interesting issue.
First, on Amendment 196, the condition referred to in paragraph 9(3) of Schedule 14, which requires the habitat to be
“maintained for at least 30 years,”
seems rather half-hearted, as the noble Baroness, Lady Hayman of Ullock, said in her very able introduction to this amendment. We are dealing here with works that the planning authority considers will result in an increase in the pre-development biodiversity value of the habitat, which is significant. Works of the kind that are being contemplated here require to be designed and planned for, as well as maintained. The period for which they are likely to be maintained is bound to affect the design and quality of the works and the effort that has been put into them.
What we should aim for is really long-term improvements to replace the huge loss of habitats. In many cases, the features we most value—such as ancient woodlands, which the noble Baroness, Lady Young of Old Scone, has been talking about so much with my support—have been built up to their present state over centuries. When I refer to ancient woodlands, I have in mind what is to be seen at ground level, as well as the trees. I am thinking about the quantities of mosses and flowers, such as the wood anemone and wild hyacinth, which grace our woodlands and, where lost, will take many decades to recreate. Thirty years is far too short to achieve that. Maybe perpetuity is too long, but the present formulation in the Bill seems not only half-hearted but misguided.
Amendment 197 of the noble Lord, Lord Blencathra, would require the submission of a biodiversity gain plan as a condition of planning permission for the HS2 lines from London to West Midlands and from West Midlands to Crewe, and for the proposed extension from Crewe to Manchester. I very much welcome the opportunity that this amendment has provided for us to discuss how net gain can be applied to projects such as these, including the proposed extension from Crewe to Manchester, which offers an opportunity for this matter to be taken forward.
I am in sympathy with the application of the net gain principle, and, like the noble Lord, Lord Blencathra, I am delighted with the amendment the Government are bringing forward to introduce a scheme for dealing with significant infrastructure projects. But to apply the condition that he is looking for to the two lines that already exist would almost certainly be unworkable at this stage, as these lines both already have the benefit of deemed planning permission under the relevant hybrid Bills. Furthermore, the extent of the land to be taken has been settled—taken compulsorily, I should stress, from the landowners.
The possibility of applying that to the proposed extension is a different matter. I am sure that the Minister will correct me if I am wrong, but my understanding of his very lengthy amendments is that they would not extend to the proposed HS2 line for the rather technical reason that permission for it will not be given under the Planning Acts, which are what the amendment is directed at, but under the hybrid Bill legislation, under which the two existing lines received their planning permission. That is a technical reason but unless the schedule is extended, as proposed in Amendment 194C, to other projects beyond those mentioned and dealt with under the Planning Acts, I do not see how the proposed line can be covered.
I should like to say a little more about that because I was the chairman of the Select Committee on the High Speed Rail (West Midland-Crewe) Bill. As part of my background reading, I had to study the report of the Select Committee on the High Speed Rail (London-West Midlands) Bill, chaired by Lord Walker of Gestingthorpe. The issue of net gain came up in both cases and one can trace through the development of those various lines a development in the approach to the issue being taken by HS2 as to whether net gain should be and could be achieved. In both cases, the promoter set itself at the outset the aim of achieving no net loss of diversity. In both cases, this attracted criticism from, among others, the Royal Society of Wildlife Trusts and the Woodland Trust.
The objection before Lord Walker’s committee was that the system of measurement that the promoter planned to adopt to achieve no net loss was different from the biodiversity-offsetting metric adopted by Defra for use by local planning authorities. At the committee’s request, Natural England looked into the issue and provided a report. The committee heard evidence from the trusts and others; it regarded the Defra metric as sensible for relatively small developments but said that it was not appropriate for use in the case of large linear projects such as the HS2 lines. The reference to linear projects is worth bearing in mind because in the case of those lines, one is dealing with projects that pass through areas of several local planning authorities and it is not so easy for planning conditions to be applied under and discussed with various authorities. Anyway, in that case, the issue of net gain was not pursued.
When the issue came before my committee three years later, the argument had developed beyond comparing the two approaches to offsetting. The Royal Society of Wildlife Trusts asked for a clause to be added to our Bill to require HS2 to ensure a net gain in biodiversity in perpetuity—note the words “in perpetuity”—with appropriate funding, in place of the promoter’s commitment to no net loss. The aim was to achieve biodiversity gains in the detailed design and implementation of the scheme.
However, the promoter pointed out that net gain could not be guaranteed without further purchase of land beyond the Bill limits, and that is one reason why I do not think that the Minister’s amendment relating to the two existing lines can be made to work. We considered that it would not be appropriate to require landowners, particularly farmers who were giving up so much of their land for the line, to be required to give up more land that was already proposed in order to provide for net gain. However, we secured an assurance from HS2 that it would do everything practicable to achieve net gain in the detailed design of the project within the Bill limits. Furthermore, HS2 was funding a scheme—a £2 million biodiversity fund—that would enable biodiversity to be provided outside the Bill limits by other landowners who were willing voluntarily to provide the kind of land needed for biodiversity gain to be achieved.
The Lord Bishop of Manchester [V]
My Lords, I draw your Lordships’ attention to my interests as set out in the register, specifically with the Church Commissioners—a significant owner of agricultural and development land. On matters of climate change, we are a leading edge and an awarding-winning investor, yet the Bill reminds us that climate is only part of the story.
I support Amendments 196, 198 and 199. I am grateful for the speech of the noble Baronesses, Lady Hayman of Ullock and Lady Bennett of Manor Castle, the noble and learned Lord, Hope, and others, who convincingly made the points that net gain must not be subject to time limits and must be adequately funded.
Back in my days as a parish priest, one church in my care had a notice in its vestry which read: “Please leave this room a little cleaner and tidier than you found it.” That was, in its small way, an attempt at net gain. The Bill offers a golden opportunity to apply that philosophy on a far wider scale. My little village church was an early adopter of a national church programme to increase biodiversity. Churchyards form a refuge from the built environment in urban areas and intensive agriculture in more rural surroundings. Setting aside an area of sanctuary in God’s acre enables wildflowers to re-emerge and small creatures to find a home. Yet churchyards are able to play this role precisely because they benefit from stable stewardship over a term far longer than a mere 30 years. Net gain cannot have a cut-off date. I am grateful to the Minister for his amendment today to extend that net gain requirement to some major national infrastructure projects. In supporting that, I echo the calls of the noble Lord, Lord Blencathra, and others in seeking assurances that net gain here will also be robust and long lasting.
With a suitable offsetting regime in place, where gain cannot practically be achieved on site, local churches will stand at the forefront of those ready to step in. In doing so, we will be enhancing the work to which we have been long committed, both theologically and practically.
The Duke of Montrose (Con) [V]
My Lords, the Bill is systematically revising so many aspects of the environment where former approaches have been lacking. A large slice of the area where noble Lords have been discussing improvement is in basically rural issues. I have declared my interests as a livestock farmer.
The Government have laid out their framework for dealing with overall environmental issues in Clauses 1 to 19—their targets, reviews and renewal plans and what they term their environmental principles. Do we reckon to approach people with a carrot or a stick? In my last intervention I quoted a phrase from Gulliver’s Travels about increasing the blades of grass from one to two, which gave a positive spin to an environmental principle and a vision for people to work towards.
In trying to invent something similar in its phraseology, I will borrow a phrase from Bob Geldof and say we are now asking as many people as possible to enlist to feed the world holistically, in terms of its air, water, biodiversity and people. By this, we could earn the thanks of future generations. There might be a catchier way of expressing it, but many feel that this is the sort of thing they should make an effort to achieve, even if we differ in our views of how to achieve it. The mountain in front of us is to learn to change the motives of countryside managers. That is the best guarantee of the permanence we are looking for.
This group of amendments focuses on biodiversity gain as a condition of planning permission. I listened with much interest to the Minister giving some clarification of what it intends to achieve for national strategic infrastructure projects. His Amendment 201A, at a quick glance, appears to be asking for the ultimate Henry VIII measure; it is almost saying that we do not know the detail of what we want to achieve, but want all the powers that might be necessary to achieve it. This echoes what those with responsibility in rural areas are feeling; we do not yet know what new support systems will achieve. But there is a critical difference in their case, as it comes without any power to change the terms other than as the Bill allows.
It is still possible that all agriculture will achieve some biodiversity once reliance is placed on crop rotations and restoring natural fertility. Can the Minister clarify, first, whether there will be some guidance on what level must be reached before land is considered suitable for biodiversity off-setting? In the same context, will assisting the achievement of biodiversity gain on a remote site be regarded as equal to a gain within the boundary of a significant site?
We are embarking on an unquantifiable change in the countryside. As farmers, we know that Mother Nature will respond, but with what? We cannot tell what the final outcome will be to it all. There will always be some looking to achieve a viable enterprise from the land, and we may have to adapt. That is where I cannot support Amendments 196 and 201AZB put forward by the noble Baroness, Lady Hayman of Ullock. She feels that 30 years is not long enough, and perhaps we all feel uneasy leaving some of this entirely in the hands of the Secretary of State. Would it make any difference to their position if the stipulation was 50 years? I heard the noble Baroness, Lady Young of Old Scone, talk about 100 years.
I was looking forward to supporting Amendment 200 in the name of my noble friend Lord Blencathra, but I gather that this is unnecessary because the Government have decided to accept it and all its implications. The only thing in my mind is whether it would be better to introduce the marine element to the main section of the Bill, as is proposed in a later group by the noble Lord, Lord Teverson. Would it still be necessary to mention “marine environment” in this section? I look forward to the Minister’s response.
Lord Krebs (CB) [V]
My Lords, I support Amendment 196 in the names of the noble Baronesses, Lady Jones of Whitchurch, Lady Parminter and Lady Bennett of Manor Castle, and the noble Lord, Lord Teverson. I also support other amendments in this group, which I will mention when I come to them.
I join other noble Lords in welcoming government Amendment 194B and the new Schedule 14A, which will include nationally significant infrastructure projects in biodiversity net gain. In this context, I also support Amendment 194C, which aims to close a potential loophole by including other major infrastructure projects, such as those concentred under a hybrid Bill procedure, in the net-gain requirement.
Amendment 196, as we have heard, seeks to remove the 30-year time limit for off-site compensatory habitat under biodiversity net gain. Many Peers have spoken eloquently in support of this change, although some have said that “in perpetuity” may be too long. So there may be a debate to be had: if not 30 years, how long should it be? Still, it should certainly be for much longer than 30 years.
The Government’s argument for the 30-year limit appears to be that landowners may be reluctant to maintain habitats and lock up land in perpetuity. However, if the aim is to protect nature for future generations, it is crucial for net-gain projects to have a longevity of greater than one generation. Furthermore, the development projects that net gain seeks to off-set will often certainly last much longer than 30 years, as the noble Baronesses, Lady Bennett and Lady Hayman of Ullock, mentioned. If a habitat created to compensate for damage by a development can simply be ploughed up after 30 years while the damaging development is left standing, we will not be passing on a guarantee of nature in better condition to the next generation. This is not damage avoided but damage deferred—an asymmetry that punishes nature.
As it stands, the Bill creates a carousel of land-use changes where landowners are paid to off-set environmental harm for a while before turning the land over to some other use. Instead we need lasting habitat that will genuinely help to create a nature recovery network, even if the result is fewer parcels of habitat for sale; that is the price of restoring nature. As the noble Earl, Lord Devon, rightly pointed out, we have to make hard choices about land use.
Furthermore, as others have pointed out, the creation of new habitats and the arrival of new species can often be a long, slow process. We have already heard several examples, to which I add my local RSPB reserve on Otmoor, near Oxford. It was established in 1997 by converting farmland into wetland, and it is still attracting additional new species of birds each year. A limit on the time horizon of net-gain projects will add to concerns already raised by ecologists at the Durrell Institute of Conservation and Ecology at the University of Kent, who found in a recent report that net gain is leading to large losses of green open space, off-set by the promise of better-quality habitats at an uncertain time in the future. They also found that 95% of the off-setting projects produced small disjointed areas of habitat rather than following the principles of
“more, bigger, better, more joined-up”
proposed by Sir John Lawton.
Given the shortcomings already identified in the operation of net gain, surely the opportunity in this Bill is to strengthen the protection of nature where we can, including by lifting the 30-year restriction. In other jurisdictions, such as the United States and Australia, off-sets are required to last either as long as the development itself or for perpetuity. If the Government are serious about creating real gains for nature from development then those gains need to be lasting.
Amendment 198A in the name of the noble Baroness, Lady Young of Old Scone, seems a no-brainer. Just as we have a waste hierarchy, we should surely have a biodiversity hierarchy: do not do harm, minimise harm and, lastly, compensate for harm.
In conclusion, the onus is on the Minister to explain to us why the perfectly sensible Amendments 194C, 196 and 198A should not be accepted. I very much look forward to his response.
Lord Randall of Uxbridge (Con) [V]
My Lords, I first offer my apologies for the technical problems. I hoped to speak after the Minister, but technical problems unfortunately rendered me as silent as a mute swan instead of the blustering great bustard I had aimed to be. The noble Lord, Lord Cormack, will probably say it serves me right for not being in the Chamber, and he may well be correct.
This is the sixth day of our Committee. I am afraid to say that for the last few days I have probably been biting the ankles of my noble friend the Minister rather a lot. I feel rather guilty about it, because in many ways he is probably more environmentally sound than I am. I know full well that if this were a “Superman” film, he would shed his ministerial suit, revealing himself to be some sort of green environmental superhero, which he undoubtedly is when he does not have his suit on.
I echo the words of my noble friend Lord Blencathra. I am delighted with the things my noble friend the Minister has brought forward, and that he has listened. More than listening, he has managed to persuade people in other departments, including the Treasury, which normally acts as one’s parents when one wants something that is new or costs a bit and it says, “You can’t afford it”. He has managed to persuade it, so that is fantastic.
I also congratulate my noble friend the Minister on the various meetings he has held. The noble Baroness, Lady Jones of Whitchurch, was being a teensy bit unfair. I was with her today when we spoke to my noble friend’s boss, so we are getting meetings and seeing some results, as we have had today. I also commend the Bill team, which I know is working very hard on this. We sometimes do not realise how hard those people behind the scenes are working when we go on so late.
I would of course love this to extend to those other projects, particularly HS2. If I had been in the Chamber I probably would have been guffawing and generally exploding with noises, because HS2 has been the bane of my life for a good few years, ever since it was just a line on a map. I speak not just as a local resident to where it came and then the constituency MP but now as the president of the Colne Valley Regional Park, which has had serious problems with what is happening. I agree that the idea of giving money to local authorities there would be quite problematic because it goes through so many different areas. I say to the noble and learned Lord, Lord Hope of Craighead, that I have found assurances from HS2 to be as reliable as that proverbial chocolate teapot. I will not dwell on HS2; it will not do my blood pressure any good. I ask my noble friend whether other mooted projects, such as Sizewell B and Heathrow—I believe neither of those has been given planning permission, but I may be wrong—would be covered by this.
It is fair to say that of course I want more—we always do—but this is a moment to congratulate the Government, and in particular my noble friend on what he has managed to achieve. If he could just persuade them on the state of nature target, his ankles would be safe for a considerable time.
Baroness Parminter (LD)
My Lords, it is a great pleasure to follow the noble Lord, Lord Randall of Uxbridge, and to echo his comment that it is great to be able to congratulate the Government. We on these Benches are always happy to chide and call for more, but it is very welcome that the Government listened, following the support around the Chamber at Second Reading for nationally significant infrastructure projects to be included within biodiversity net gain. We commend them for that.
Equally, as one of the co-signatories to the amendment from the noble Lord, Lord Blencathra, which would, in due course, extend it to the marine environment, I am absolutely delighted that we did not even have to make the case: the Government had accepted it beforehand. It is a great pleasure to speak briefly to support the Government.
As usual, I would, like others, point out that there are a couple of areas where we would make the case for going further. We very much support the case for Amendment 196 in the name of the noble Baroness, Lady Jones of Whitchurch, which was put so powerfully by the noble Baroness, Lady Hayman of Ullock—I agree with the noble and learned Lord, Lord Hope of Craighead on that. Having a time limit to the nature of the biodiversity net gain is a significant flaw. It is not correct that somehow you can plough up the land after 30 years. Some habitat restoration projects already have a timeline going into the next century. As the noble Baroness, Lady Young of Old Scone, said, a number of climate projects have a timeline of more than 100 years.
I live in a house which was built in the 1920s. Most developments are around for more than 100 years; how come biodiversity is not afforded the same level of perpetuity? The noble and learned Lord, Lord Hope of Craighead, put it well when he said that the timeline is far too short. The Government should listen to the majority of voices in this Committee—I understand that there were two exceptions—that made the case that the 30-year time limit is too short.
The other area these Benches strongly support is covered by another amendment in the name of the noble Baroness, Lady Jones of Whitchurch, Amendment 194C, which raises the remaining few areas where there are some question marks about schemes that are just outwith the scope. As, again, the noble and learned Lord, Lord Hope of Craighead, said, the hybrid Bill procedure may be involved in some issues.
My noble friend Lord Teverson added his name on behalf of these Benches to the amendments from the noble Baroness, Lady Bennett, on securing sufficient funding, which is an important point to make. Like the noble Lord, Lord Krebs, we support the noble Baroness, Lady Young of Old Scone, in her strong case for the biodiversity hierarchy to be adopted as we take biodiversity net gain forward.
The noble Earl, Lord Devon, and the noble Lord, Lord Blencathra asked some very sensible, technical questions which need resolving, and it would be great if we could hear some answers tonight from the Minister. I end my comments on this group with heartfelt thanks to the Government.
Lord Goldsmith of Richmond Park (Con)
I am thankful to the noble Baroness, Lady Jones of Whitchurch, first for her amendments but also for her support for biodiversity net gain generally. I shall begin with her Amendments 196 and 201AZB as they pertain to agreements in perpetuity. This issue has been raised by a number of noble Lords, and I understand and hear her concern for the longevity of habitats delivered in pursuit of biodiversity net gains.
I shall make a few points about this if I may. First, it is not true to say that the biodiversity net gain that is generated could be simply torn up after 30 years, or that those rich habitats would be lost. Do not forget that there is already a wide range of protections and management incentives for habitats, which would apply to biodiversity net gain sites after the 30-year requirement. Those protections are being enhanced as we speak. It is also important to note that 30 years is a minimum. The Government have always been clear that we want to encourage longer agreements where the landowner is happy to do so, but I am acutely aware that we need to deliver habitats in the right places to help wildlife recovery.
That takes me to a third point, which is a legitimate concern that immediately demanding the commitment of land in perpetuity, as the amendment would, would without doubt deter at least some landowners from offering their land for conservation in key strategic areas in the first place. That would make it much harder to secure the buy-in that we will need if we are to have any chance of reversing the biodiversity loss that we are seeing in this country.
I feel that in the ideal world you would have land improved and then protected for ever in law. However, I worry that there is a danger in letting the perfect being the enemy of the good in this case. There is a rationale behind what we are proposing and I think, on balance, that it is right. However, I have heard the arguments that have been put forward and will continue to have those discussions.
The Government have listened to both sides in this debate and recognise that the right answer to this question might be different for major infrastructure. I am pleased to inform the noble Baroness that we have left the issue of agreement duration as it pertains to major infrastructure open to further consultation. In simple terms, we have not prescribed in the Bill that net-gain agreements for major infrastructure must be 30 years. I can confirm that, subject to consultation, it is not the Government’s intention to require a shorter duration for major infrastructure development than would be asked for development permitted under the Town and Country Planning Act.
I move on to Amendments 197 and 201 in the name of my noble friend Lord Blencathra and Amendment 194C in the name of the noble Baroness, Lady Jones of Whitchurch. I thank my noble friend Lord Blencathra for his comments. We have a happy customer and, to quote Basil Fawlty,
“we should have him stuffed.”
I share the view of my noble friend and the noble Baroness that the biodiversity net gain requirement should be applied widely.
On Amendment 194C, the Government’s support for widely applied biodiversity net gain is shown through net gain provisions which include, by default, the types of major infrastructure projects to which the noble Baroness’s amendment relates. Following commencement of the measures included in the biodiversity net gain provisions, when a major infrastructure project is brought forward, for example, through a future hybrid Bill, and granted deemed planning permission under the Town and Country Planning Act 1990, it would be subject to the biodiversity net gain condition unless explicitly exempted.
In response to the noble Baroness, Lady Hayman, paragraph 10 in the new schedule inserted by Amendment 201A makes provision for the biodiversity objective to apply to development types that are not currently covered by a national policy statement. This would include any development brought into the scope of the regime at a future date, so major housing developments will be included. I hope she is reassured by that. In fact, the exemption clause is for potentially narrow, limited, individual, targeted examples if they arise. It is not about exempting classes of developments, such as large housing projects. I hope that also reassures her.
Moving on to Amendments 197 and 201, the Government have been clear that any exemptions will be narrow and practical in order to keep net-gain requirements proportionate, as I said earlier. The vast majority of permitted development rights are for small-scale development or changes of use, such as minor alterations to buildings where there is little or no impact on biodiversity, for example, conservatories or sheds. Applying the requirement to the delivery of urgent Crown development—applications for which are very rare as there has been only one such application in the past decade, for example—could risk causing unacceptable delays in addressing urgent national priorities due to the shorter development timescales typically involved.
I am pleased to confirm to my noble friend Lord Blencathra that the next phase of the HS2 scheme, Phase 2b from Crewe to Manchester, will deliver a net gain for biodiversity. However, applying the mandatory requirement as set out in the Bill to this phase of HS2 would result in legislative delays and further costs to the scheme for little or no gain in outcomes. The HS2 phases that are already under way are delivering no net loss of biodiversity, for example by rewilding 127 hectares of chalk grassland in the Colne valley. The noble Baroness, Lady Bennett, mentioned the saplings that were allowed to die off. She is right, and I understand that HS2 has committed to replanting all of them.
I want to address a broader point that a number of noble Lords have made, including the noble and learned Lord, Lord Hope of Craighead. We all acknowledge that ancient woodland is irreplaceable so it cannot meaningfully or realistically be compensated for by net gain. You cannot replace ancient woodland for all the reasons that the noble and learned Lord pointed out. Therefore, ancient woodland simply needs protection. It is wrong to describe that recognition, that fact—I think it is a fact—as mendacious, as the noble Baroness, Lady Young of Old Scone, did. It is just a simple observation and one that holds true.
The Deputy Chairman of Committees (Baroness Finlay of Llandaff) (CB)
My Lords, I have received five requests to speak, from the noble Baroness, Lady Neville-Rolfe, the noble Lord, Lord Blencathra, the noble Baroness, Lady Bennett of Manor Castle, the noble Earl, Lord Caithness, and the noble Lord, Lord Lucas. I will start by calling the noble Baroness, Lady Neville-Rolfe.
Baroness Neville-Rolfe (Con)
I am sorry I missed the list for this amendment. Noble Lords will know the importance I attach to cost benefit, whatever the nature of legislation and however much support it has. Improving biodiversity is clearly very desirable, given past losses. However, the proposals before us on nature, notably on net gain, will have a large and certain impact on development while they might or might not significantly improve biodiversity. They will add grit to the system, placing a further burden on local government and decreasing productivity, especially in infrastructure and housing.
This could cumulatively cost a lot, and it could hit smaller operators disproportionately, as the Minister was kind enough to acknowledge. The costs, of course, fall mainly on business and other developers and not on the Treasury, which is no doubt one of the reasons why it has been supportive. One of the main beneficiaries will be consultants, as with the environmental impact assessments that I remember coming in in the 1980s. They added costs—a lot of costs—and gave a lot of work to consultants, but may not have been entirely effective.
I am not sure that the published impact assessment—for which, many thanks—gives the full picture on costs. These will depend on the details and the complexity, on the time taken to assess biodiversity loss, on registration, on maintenance, on inspection, on enforcement and on covenants and the credits scheme the Minister has mentioned. My noble friend Lord Lucas was very good on some of these points, I thought, and the noble Earl, Lord Devon, made an interesting observation about the pressure on land use that needs to be assessed. Moreover, and this is the reason I have stood up, the Bill has been added to quite substantially. That has been well received today, and there is pressure to add more. How much will the costs to businesses and public authorities rise as a result of adding so many new areas to biodiversity gain in Schedule 14A?
I acknowledge that today’s audience is an entirely environmental one, including our “environmental superhero”, my noble friend the Minister, and that this is the year of COP 26. However, the productivity of the economy also matters to the interests of our children and grandchildren, and to the disadvantaged. There is lots of work still to do on getting the detail right and understanding the costs.
Lord Goldsmith of Richmond Park (Con)
I thank the noble Baroness for raising an important point. It is one that I also addressed in my remarks. We are not there yet and do not have all the answers. We are determined that this should be a streamlined process. We need to deliver for nature, but we have to do it in a way that requires developers, particularly smaller developers, to bear as little cost as possible. What we do not want to do is inhibit the productivity that the noble Baroness has just described. We have work to do, this is an evolution, but the proposals have been warmly welcomed pretty much across the board—from the small to the medium to the larger developers. There are questions and concerns, but the principle has been embraced across the sector.
Lord Blencathra (Con)
My Lords, I do not need the Minister to respond to the points I am about to make. First, I thank him for his detailed response to all points raised in this debate. I raised a few technical queries, but I do not need to press him today or need a detailed response from him, because I assure him of this: officials at Natural England, at all levels, are working hand in glove with his officials to address all aspects of net gain—to make sure we have the registers up and running, to figure out how to extend it to marine and to figure out the credit system. I am confident that, if funding allows, we will produce detailed proposals as soon as possible.
The main reason I got up to speak—I do so with considerable trepidation—is to challenge some of the comments made by the noble and learned Lord, Lord Hope of Craighead. He seemed to imply, and indeed said to me during our last HS2 debate, that, if we extend net gain to the first two legs of HS2, it will require the compulsory purchase of more land. No, it will not. That is where, in the distinguished job the noble and learned Lord did in chairing the committee, the promoters of the Bill misinformed him, no doubt inadvertently. You can get net gain from HS2 or any other project, without changing a single item in the HS2 Bill. One does not need to change the planning application and, more importantly, one does not need to buy a single extra square inch of land. Net gain is not about that.
Theoretically, one could buy more land on either side of HS2 and have wider embankments, but net gain can be delivered by HS2 funding projects off site, near the railway line. Neighbouring farmers may voluntarily wish to add some net gain. It requires only that HS2 funds it and I suggest that there are adequate funds. I believe the cost of HS2 went up another £1.5 billion last week. The cost of increasing from no net loss to some net gain would be quite insignificant, in comparison to the overall costs.
My final point for the noble and learned Lord is this: net gain is already moving away from no net loss, from what I hear. I know my noble friend Lord Randall of Uxbridge is slightly more cynical about this but, if HS2 can now move slightly beyond no net loss to some net gain, and can do it without changing the hybrid Bill or applying for more planning permission, we should keep up the pressure on it for 10% net gain on the existing two legs. We can do that without changing a single bit of law.
Lord Goldsmith of Richmond Park (Con)
I will take up my noble friend on his offer for me not to respond, other than to say that I note his comments and, I think, agree with everything he is saying.
Baroness Bennett of Manor Castle (GP) [V]
My Lords, in his argument against Amendment 196, which calls for biodiversity gain sites to be protected in perpetuity, the Minister suggested that they might receive protection under provisions that already exist. Could he specify what provisions might apply 30 years after establishment? For example, Medmerry, the project I referred to earlier, might become a Ramsar site even in that short timeframe. It is clearly designed to exist in perpetuity anyway, depending on the rise of sea levels. But would most sites really be likely to be eligible to become a SSSI, after 30 years?
Lord Goldsmith of Richmond Park (Con)
It is impossible to answer the question, because it depends on the site and the type of ecosystem created, which determines the kind of protection that applies. My point is that there are protections for natural sites already, although I am not suggesting that there are enough. It is not easy to get permission to destroy important ecological sites. As I have said in this and in many other debates, we intend to build on those protections. The idea that, in 30 years, it will not be significantly harder to grub up valuable ecosystems—even 30 year-old ecosystems, which are important—is highly unlikely or virtually impossible to imagine.
The Earl of Caithness (Con)
My Lords, first, I congratulate my noble friend, as others have done, on getting this amendment into the Bill. It is a major step forward.
I have two questions for him. He was again critical of the UK’s performance worldwide on nature and biodiversity. We know that it is not good. I remember being heavily criticised when I was a Minister, but I then discovered that most countries criticising us were not using the same basis of measurement. I recall that, not so long ago, we were portrayed as being very bad on Covid, only to find that the countries doing better us were assessing Covid on a totally different basis. Can my noble friend say that his comments will apply universally across all other countries?
My second question follows on from what my noble friend Lady Neville-Rolfe said about securing good use of public funds. I thoroughly approve of biodiversity net gain, but what happens if nature destroys one of the projects subject to support for biodiversity net gain? Perhaps my noble friend wants to restore a bit of peatland and get some sphagnum moss back. Everything works well for 10 or 15 years but, due to climate change, the land changes and can no longer support sphagnum moss. Therefore, the whole point of that bit of net gain falls down. Does my noble friend envisage having some sort of remedy to achieve a different type of net gain? How does he foresee that sort of situation being remedied?
Lord Goldsmith of Richmond Park (Con)
On the first point, my noble friend is absolutely right. My comments relate to the fact—it is a fact, there is no doubt—that our biodiversity has decreased very sharply in recent decades and continues to go down. That is why our goal is to bend that curve so that, instead of going down, we start to increase biodiversity.
At the same time, the UK is, I believe, doing more work internationally—not just by wagging its finger but through example—than any other country in the world. If you compare what we are doing on nature with, for example, what is proposed by the new Administration in the United States or any other country in Europe, I would say that we are miles ahead in our ambitions and in what we are doing with our international climate finance and ODA. We were the first country to deal with things such as our fossil fuel subsidies and our land use subsidies. Our campaigns internationally, not least the 30by30 initiative, are changing the debate around nature. I am very proud of where we are in the debate but, like everywhere in the world, we have an enormous amount of work to do to translate that into action on the ground.
My noble friend’s second point is very interesting, and one that I shall have to come back to him on for any details. My only observation would be that a proper net gain project is not going to be about one species, it will be about the habitat that supports that species. Even if climate change were to render the conditions too difficult for that particular species, you will not have no gain—you will still have gain on that side as a consequence of the habitat improvement. He raises a very interesting point; it is one that merits thought and I will think about it.
Lord Lucas (Con) [V]
My Lords, I am very grateful to my noble friend for his comprehensive replies, but there are a number of areas I would like him to expand on—if he chooses, by correspondence. In the case of the first, it may be best to have an online meeting, should that be possible.
I would really like to walk through with him what happens if we have a medium-sized housing development with on-site diversity gain and, 10 years later, someone questions whether that gain has been maintained, or even achieved. What information will be available to that person? How will they, in practice, be able to challenge it? Exactly what will that information look like? Professional good practice guidelines do not seem a very strong basis for challenging whether something comes up to standard; they are pretty woolly at the moment. Will something be set that can actually be judged against?
If there is a question over whether the gain has been maintained, who will be responsible for taking action? How can an ordinary citizen kick them into taking action? Where, in practice, will the money from a housing estate of maybe a couple of hundred houses be extracted from to make good the lack of performance? How is this actually going to work? As I said, this may be best dealt with as a meeting, but if the Minister chooses to burst into print on it, I shall be delighted.
Secondly, can my noble friend share with us his concerns about perpetuity rather than 30 years? There are lots of aspects of land where perpetuity is normal. No one expects to get out from under an SSSI or building listing, and I do not expect to get out from under the covenants that apply locally to the Duke of Devonshire. Those go with the land and one expects them to be there forever. If one has made improvement to the biodiversity of a piece of land, maintaining that forever or compensating for a failure to do that by providing additional biodiversity elsewhere or onsite seems to fit well with perpetuity, and I cannot comprehend where this opposition is coming from in practice. We are all [Inaudible].
Thirdly, can the Minister answer on whether the biodiversity gain in a particular development will be linked to the local nature recovery strategy or be independent from it, and if it is linked, how does it work?
Lastly, I should be grateful to understand the Minister’s response to the letter that the department has received from my right honourable friend Bim Afolami.
The Deputy Chairman of Committees (Baroness Garden of Frognal) (LD)
Minister, I think that it is your turn now.
Lord Goldsmith of Richmond Park (Con)
The short answer to the first question is that, were such a thing to happen, it would be a breach of planning permission, and the local authority could enforce that. I am happy to have the meeting that the noble Lord has asked for—but it would a breach of contract and the rules.
On the issue of 30 years, I feel that if I were to answer that question, I would be repeating what I had said earlier. Again, I am happy to discuss that when we meet, but the argument is that the 30 years is not a maximum. We will have an increasing number of protections for the land over time. That is part of the government programme and is a commitment that we have made. However, most importantly, we need to get land into the system. We have had many discussions in relation to the tree strategy and the incentives that we are creating there to encourage people to give over some of their land for tree planting. It is difficult. It does not matter what the incentives are—it is difficult—and if one were to ask people to make their commitments in perpetuity, that would limit the market for us and make our job much more difficult. That is the bottom line and the main reason.
The Earl of Devon (CB)
I am sorry for delaying noble Lords a little further. I am grateful to the noble Baroness, Lady Neville-Rolfe, for her dollop of reality. In response to her comments, the Minister suggested that, in his understanding, the industry and developers and so on are overwhelmingly supportive of biodiversity net gain.
I work for a solicitors’ firm in the south-west called Michelmores, which regularly hosts a planning and developers’ round table. Just last month, we hosted a gathering of planners and developers that was addressed by the Environment Bank to introduce the idea of biodiversity net gain. The overwhelming response was that they had not heard of it at all; they were hugely uncertain about it, and there was considerable trepidation. Their principal concern was where on earth they were going to find the qualified professional consultants necessary to conduct and undertake all this business, because they just do not exist. Can the Minister provide any insights into how that industry will achieve the professional qualifications and the huge number of people necessary within a two-year period to deliver all this biodiversity net gain understanding?
Lord Goldsmith of Richmond Park (Con)
I understand that some may not have heard of this, but developers should have, because it is already current policy in the National Planning Policy Framework. Not everyone goes to bed reading such a document, but if you are in the development sector you ought to be familiar with what is in it, so I am surprised by that. I certainly did not say that they were overwhelmingly supportive: I think the term I used was “broadly supportive”. I do not want to exaggerate, but the feedback we have had has been broadly supportive from people at all stages of the spectrum, from the large to the medium and the small—but, as I said, this is our job. We need to do this; it is a really important part of the nature recovery journey we are on, which I believe is backed by most people in this country. Most people recognise that this is something that has to happen, and our job is to make it work.
As for consultants, this is an entirely new thing, a world first, so there will not be loads of consultants waiting to start advertising their skills as of tomorrow. But when you create a market for something, the market responds. People will recognise that there are careers and opportunities in helping companies at all levels to deliver biodiversity net gain. So I imagine that, as with most things market-related, we will see ever more people entering this field with ecological expertise, knowledge and skills to offer those businesses.
Baroness Hayman of Ullock (Lab)
My Lords, this has been an extremely informed debate, and I thank all noble Lords who have taken part. I listened with great interest to all contributions. I also commend the Minister for bringing forward his amendment and join the noble Baroness, Lady Parminter, in thanking him for doing so and for listening to the serious concerns that were raised at Second Reading. I also thank the noble Baroness for her support for our amendments.
How wonderful it was to see the noble Lord, Lord Blencathra, so happy, although I am not sure how he feels about being stuffed. He made some extremely important points and asked some very important questions, so I thank him for that.
We support the amendments of the noble Baroness, Lady Bennett of Manor Castle. As she said, there does seem to be a bit of a get-out clause in the Bill regarding biodiversity net gain for some development. She supported our position that 30 years is simply not long enough for maintenance following development, and she also talked of the importance of standards and of independent verification.
We also support the amendments of my noble friend Lady Young of Old Scone, who asked when we will actually see the proposals around planning. It is an important question when looking at this. She talked about how all projects should be obligated to provide biodiversity net gain, but she also raised the very important point that HS2 is destroying irreplaceable ancient woodland. That brings us to the point that biodiversity net gain and biodiversity credits are not the answer to everything when we have large development projects actually destroying important habitats.
The noble Lord, Lord Lucas, talked about standards and the quality of information regarding biodiversity net gain. We support what he is saying in this: it is important that a close eye is kept on sites so that they keep going at a high quality.
I was disappointed that the noble Earl, Lord Devon, does not support our proposal for maintenance “in perpetuity”. A number of noble Lords discussed this. I agree with him that it is important that we know more about the detail as to how biodiversity net gain will be delivered, as that is not mapped out, and I thought his question to the Minister was very pertinent.
The noble and learned Lord, Lord Hope of Craighead, also felt that 30 years was a very short time for maintenance of new nature. He also talked about the fact that this short period would affect the design and the effort in looking at the kinds of projects we will be producing for biodiversity net gain. The key thing is to make sure that all restoration projects are of high quality. He also made many important points regarding the planning Act.
The right reverend Prelate the Bishop of Manchester was concerned about net gain being subject to time limits and said that it absolutely has to be adequately funded. He considered that, with this Bill, we have a golden opportunity to get that right. I absolutely support those comments.
Sadly, the noble Duke, the Duke of Montrose, also did not support our amendment on “in perpetuity” but, again, he felt that 30 years was not sufficient for maintenance. I listened with great interest to the concerns that he expressed about rural landowners and the need for clear guidance from government, which echoed much of what the noble Earl, Lord Devon, said. The noble Lord, Lord Krebs, supported our amendment, and I thank him for that. He clearly laid out the reasons again as to why 30 years’ maintenance is not sufficient for genuine nature restoration. He gave us some examples of shortcomings on existing and recent projects.
The noble Lord, Lord Randall of Uxbridge, put quite an interesting image in my head of the Minister in a sort of green superhero outfit. He also expressed concerns about accepting assurances from HS2 at face value—he has clearly had some personal experience there. Therefore, it is important that all projects are covered by the Bill.
I thank the Minister for his very thorough response. He talked about the issue around our amendment looking at in perpetuity for maintenance and management as opposed to 30 years. What has come across from the debate is that people are not necessarily convinced by “in perpetuity” right across the House, but I did not hear anybody say that they thought that 30 years was sufficient, so I ask the Minister to take that away and perhaps consider it. He said that it would cover all projects, but what guarantees do we have? We need some further discussion on this. The noble Lord, Lord Lucas—and his dog—made some quite salient points about the need to consider this further.
Looking at the Minister’s response on our concerns about not all major infrastructure being covered, I listened very carefully to what he said around exemptions. I am concerned that there may still be gaps and loopholes, but I need to have a better look at it following his comments. Perhaps we could meet and he could go through this in more detail with us so we can get a better understanding of where he is coming from. Again, I thank the noble Lord for a very detailed reply, which we very much appreciate, but in the meantime I beg leave to withdraw my amendment.
“SCHEDULE 14A BIODIVERSITY GAIN IN NATIONALLY SIGNIFICANT INFRASTRUCTURE PROJECTSPART 1PRINCIPAL AMENDMENTS TO PLANNING ACT 20081_ The Planning Act 2008 is amended as follows.2_ In section 103 (Secretary of State is to decide applications), after subsection (1) insert—“(1A) Schedule 2A makes provision about biodiversity gain in relation to decisions of the Secretary of State under sections 104 and 105; and for related matters.”3_(1) Section 104 (decisions in cases where national policy statement has effect) is amended as follows.(2) For subsection (3) substitute—“(3) The Secretary of State must decide the application in accordance with any relevant national policy statement.(3A) In particular, if a relevant national policy statement contains a biodiversity gain statement under Schedule 2A in relation to development of the description to which the application relates, the Secretary of State may not grant the application unless satisfied that the biodiversity gain objective contained in the statement is met in relation to the development to which the application relates. (3B) Subsections (3) and (3A) do not apply to the extent that one or more of subsections (4) to (8) applies.”(3) In each of subsections (4), (5) and (6), for “any relevant national policy statement” substitute “subsection (3) or (3A)”.(4) In subsection (8), for “a national policy statement” substitute “subsection (3) or (3A)”.4_(1) Section 105 (decisions in cases where no national policy statement has effect), after subsection (2) insert—“(3) Where there is a biodiversity gain statement under Schedule 2A in relation to development of the description to which the application relates, the Secretary of State may not grant the application unless satisfied that the biodiversity gain objective contained in the statement is met in relation to the development to which the application relates.(4) Subsection (3) does not apply to the extent that the Secretary of State is satisfied that deciding the application in accordance with that subsection would have an effect referred to in section 104(4), (5), (6) or (7).”5_ After Schedule 2 insert—“SCHEDULE 2A Section 103BIODIVERSITY GAINIntroductory1_(1) This Schedule applies to development which—(a) is of a description of development to which a development consent order application may relate, and(b) is not excluded development,to the extent that the development is carried out in England.(2) In this Schedule—“development consent order application” means an application made under section 37 which falls to be determined under section 104 or 105;“excluded development” means development of a description specified in regulations made by the Secretary of State.Biodiversity gain statement2_(1) A biodiversity gain statement is a statement of government policy in relation to the biodiversity gain to be achieved in connection with any description of development to which this Schedule applies.(2) In particular the statement must—(a) set out a biodiversity gain objective for any description of development to which this Schedule applies, and(b) set out that, where development consent order applications are made for any development of that description during a period specified in the statement, the development must meet that objective.(3) The statement may specify how development of any description may or must meet the biodiversity gain objective.(4) In this Schedule, references to the period for which a biodiversity gain statement has effect are to the period referred to in sub-paragraph (2)(b).3_(1) A biodiversity gain objective is an objective that the biodiversity value attributable to development to which a biodiversity gain statement relates exceeds the pre-development biodiversity value of the onsite habitat by a percentage specified in the statement.(2) The percentage specified under sub-paragraph (1) must be at least 10%.(3) The Secretary of State may by regulations amend sub-paragraph (2) so as to change the percentage for the time being specified in it. 4_(1) A biodiversity gain statement may specify for the purposes of a biodiversity gain objective how the biodiversity value or relative biodiversity value of any habitat or habitat enhancement is to be calculated.(2) That may include calculation by, or by reference to—(a) a biodiversity metric set out in a document produced by the Secretary of State for the purposes of the statement,(b) the biodiversity metric referred to in paragraph 4 of Schedule 7A to the Town and Country Planning Act 1990, or(c) such other biodiversity metric as the Secretary of State considers appropriate.(3) The Secretary of State must—(a) lay any document within sub-paragraph (2)(a) before Parliament, and(b) publish it in such manner as the Secretary of State considers appropriate.5_(1) A biodiversity gain statement may specify for the purposes of a biodiversity gain objective—(a) what the pre-development biodiversity value of onsite habitat consists of, and(b) the date by reference to which it is calculated.(2) A biodiversity gain statement may in particular under sub-paragraph (1)(b) specify a different date in relation to development on land where activities on the land before the making of a development consent order application have, or have had, the result that the biodiversity value of the onsite habitat is lower than it would otherwise have been.(3) A biodiversity gain statement must include provision to secure that, where a development consent order application relates to land which is registered in the biodiversity gain site register, the pre-development biodiversity value of the onsite habitat includes the biodiversity value of the habitat enhancement which is, on the date specified under sub-paragraph (1)(b), recorded in the register as habitat enhancement to be achieved on the land.6_(1) A biodiversity gain statement may specify for the purposes of a biodiversity gain objective what the biodiversity value attributable to any development consists of.(2) In particular, a biodiversity gain statement may specify any of the following as included in the biodiversity value attributable to any development—(a) the post-development biodiversity value of the onsite habitat,(b) the biodiversity value of any offsite biodiversity gain allocated to the development (which may be registered offsite biodiversity gain), and(c) the biodiversity value of any biodiversity credits purchased for the development.(3) If pursuant to sub-paragraph (2)(a) a biodiversity gain statement specifies the post-development biodiversity value of the onsite habitat, the statement must specify what that value consists of.(4) If pursuant to sub-paragraph (2)(b) a biodiversity gain statement specifies the biodiversity value of any offsite biodiversity gain allocated to the development, other than registered offsite biodiversity gain, the statement must specify—(a) what offsite biodiversity gain consists of, and(b) how the allocation of offsite biodiversity gain is to be recorded.(5) Provision under sub-paragraph (3) or (4) must include provision to secure that, where works are carried out for the purposes of any development that increase the biodiversity value of onsite or offsite habitat by an amount that is significant in relation to its previous biodiversity value, the increase is to be taken into account only if—(a) any habitat enhancement resulting from the works is maintained for a period specified in the statement, and(b) the maintenance of that habitat enhancement is secured in a way specified in the statement (for example, through conservation covenants or requirements imposed by a development consent order).7_(1) A biodiversity gain statement must set out whether, and if so how, the biodiversity gain objective applies in relation to development where the onsite habitat is irreplaceable habitat.(2) A biodiversity gain statement may specify requirements, in relation to any such development, relating to the making of arrangements for the purpose of minimising the adverse effect of the development on the onsite habitat.8_ A biodiversity gain statement must specify the evidence that persons making a development consent order application in relation to which the statement has effect must produce in order to demonstrate how the biodiversity gain objective is met.Development covered by an existing national policy statement9_(1) This paragraph applies where, at the time this Schedule comes into force, an existing national policy statement sets out policy in respect of a description of development to which this Schedule applies.(2) On the first review of the existing national policy statement under section 6 after the coming into force of this Schedule, the Secretary of State must amend the statement under section 6(5)(a) so as to include a biodiversity gain statement for development of that description.(3) The Secretary of State may issue a separate biodiversity gain statement (a “separate biodiversity gain statement”) having effect for any period before that for which the statement included in the existing national policy statement under sub-paragraph (2) has effect.(4) Before issuing a separate biodiversity gain statement the Secretary of State must consult such persons as the Secretary of State considers appropriate.(5) The Secretary of State must keep a separate biodiversity gain statement under review and may amend it at any time.(6) The Secretary of State must—(a) lay a separate biodiversity gain statement before Parliament, and(b) publish it in such manner as the Secretary of State considers appropriate.(7) A separate biodiversity gain statement is for the purposes of section 104(2) to (9) to be regarded as contained in the existing national policy statement.(8) If it appears to the Secretary of State that the existing national policy statement is inconsistent with a separate biodiversity gain statement, the Secretary of State may amend the existing national policy statement in such manner as seems appropriate to the Secretary of State to remove the inconsistency.(9) Where the existing national policy statement is amended pursuant to sub-paragraph (2) to include a biodiversity gain statement in relation to any description of development, a separate biodiversity gain statement relating to development of that description must be revoked as from the beginning of the period for which the new statement has effect. (10) If the existing national policy statement’s designation as a national policy statement is withdrawn in relation to any description of development, any separate biodiversity gain statement relating to development of that description has effect as if it were a biodiversity gain statement issued under paragraph 10(2).(11) References in sub-paragraphs (4) to (10) to separate biodiversity gain statements include amended versions of such statements.(12) For the purposes of this Schedule, “existing national policy statement” means a national policy statement which is designated under section 5 before the coming into force of this Schedule.(13) For the purposes of sub-paragraph (2), an existing national policy statement is only reviewed under section 6 after the coming into force of this Schedule if the review begins after that time.Development not covered by a national policy statement10_(1) This paragraph applies where, at the time this Schedule comes into force or any subsequent time, no national policy statement sets out policy in respect of a description of development to which this Schedule applies.(2) The Secretary of State may issue a biodiversity gain statement in relation to that description of development.(3) Before issuing a biodiversity gain statement under sub-paragraph (2) the Secretary of State must consult such persons as the Secretary of State considers appropriate.(4) The Secretary of State must keep a statement issued under sub-paragraph (2) under review and may amend or revoke it at any time.(5) The Secretary of State must—(a) lay a statement issued under sub-paragraph (2) before Parliament, and(b) publish it in such manner as the Secretary of State considers appropriate.(6) References in sub-paragraphs (3) to (5) to statements issued under sub-paragraph (2) include amended versions of such statements.(7) If after a statement is issued under sub-paragraph (2) a national policy statement relating to the description of development is designated under section 5, the Secretary of State must—(a) include a biodiversity gain statement in relation to that description of development in the national policy statement, and(b) revoke the statement issued under sub-paragraph (2).Development at sea11_(1) The Secretary of State may by regulations provide for this Schedule to apply, with or without modifications, to any development to which this paragraph applies.(2) This paragraph applies to development which—(a) is of a description to which a development consent order application may relate, and(b) is not excluded development,to the extent that the development is carried out in the English marine region.(3) In sub-paragraph (2), the “English marine region” means—(a) the English offshore region, and(b) the English inshore region, excluding waters in England.(4) Regulations under this paragraph may make provision modifying the application of this Schedule in relation to development which is carried out at an inter-tidal location. (5) In sub-paragraph (4), “inter-tidal location” means a location that—(a) is in England, and(b) is also at any time in the English inshore region.Interpretation12_ For the purposes of this Schedule—“biodiversity credits” means credits under section 94 of the Environment Act 2021;“biodiversity gain site register” means the register under section 93 of the Environment Act 2021;a “biodiversity metric” is a means of measuring the biodiversity value or relative biodiversity value of habitat or habitat enhancement;“development consent order application” has the meaning given by paragraph 1(2);“English inshore region” and “English offshore region” have the meanings given by section 322 of the Marine and Coastal Access Act 2009;“excluded development” has the meaning given by paragraph 1(2);“existing national policy statement” has the meaning given by paragraph 9(12);“irreplaceable habitat” has the meaning given in regulations under paragraph 18 of Schedule 7A to the Town and Country Planning Act 1990;“onsite habitat”, in relation to any development, means habitat on the land to which the development consent order application relates, and “offsite habitat” means habitat on other land;“registered offsite biodiversity gain” has the meaning given by paragraph 10 of Schedule 7A to the Town and Country Planning Act 1990.”PART 2SUPPLEMENTARY AMENDMENTS TO THE PLANNING ACT 20086_ The Planning Act 2008 is amended as follows.7_ In section 37 (applications for orders for development consent), after subsection (3) insert—“(3A) The documents and information prescribed under subsection (3)(d) may include documents and information demonstrating how any biodiversity gain objective in a biodiversity gain statement under Schedule 2A having effect in relation to the development is to be met.”8_ In section 120 (what may be included in development consent order), in subsection (2), at the end insert—“(c) requirements designed to secure that—(i) the biodiversity gain objective under Schedule 2A relevant to the development is met;(ii) any proposals included in the application for the order for the purposes of meeting the biodiversity gain objective are implemented.”9_(1) Section 232 (orders and regulations) is amended as follows.(2) In subsection (5), at the end insert—“(f) regulations under paragraph 3(3) or 11 of Schedule 2A.”(3) In subsection (7), after “or 105(2)(b)” insert “or paragraph 3(3) or 11 of Schedule 2A”.”Member’s explanatory statement
This amendment makes provision for biodiversity gain to be taken into account in decisions under sections 104 and 105 of the Planning Act 2008 relating to development consent for nationally significant infrastructure projects.
Member’s explanatory statement
This amendment is consequential on Lord Goldsmith’s proposed new Schedule relating to biodiversity gain.
Member’s explanatory statement
This amendment is consequential on Lord Goldsmith’s proposed new Schedule relating to biodiversity gain.
The Deputy Chairman of Committees (Baroness Garden of Frognal) (LD)
We now come to the group beginning with Amendment 205A. Anyone wishing to press this or anything else in this group to a Division must make that clear in debate.
Amendment 205A
Lord Lucas
“(1ZA) Such consideration must include consideration of empowering relevant civil society organisations to further the general biodiversity objective, in particular by breeding and releasing native animals.”Member’s explanatory statement
The purpose of this amendment is to enable discussion of how the regeneration of the populations of those insects and other animals that have become locally or nationally extinct can be sped up.
Lord Lucas (Con) [V]
My Lords, in addition to moving Amendment 205A, I shall speak to the other amendments in the group.
If one is setting out to restore nature in a bit of the countryside, it is dead easy to restore the plants. Almost every native British plant—certainly all the common and half-common ones—are available from a number of seed sources. All you have to do is plant the seeds or, if you are that bit keener, to grow the seeds on in the garden and then plant out plugs. There is no difficulty in doing it and no laws against it. It is a process widely used to bring nature back into farms, and we are all used to it.
When it comes to animals, it is much harder. Of course, some big animals introduce themselves. I do not know any way of keeping a fox out of a bit of territory, and mice and similar mammals seem to move pretty well. But when it comes to glow-worms, crickets, soil animals generally and even lizards and frogs, that is not the case. These animals just do not have the ability to move across gaps in countryside. They have not evolved a widely mobile strategy. If I want glow-worms back somewhere, I have to put them there; they will not come to me.
The BBC celebrates, as do I, a glow-worm reintroduction process under way at the moment to add 500 glow-worms in two sites over two years. That is ridiculous. It is a pathetic level of ambition. We ought to be distributing millions of glow-worms to tens of thousands of sites to get a decent effect on nature and to get things back to where they should be if we had looked after nature.
This sort of process absolutely needs to be properly controlled, which is what I am trying to achieve through the amendments I propose. We need not small, underfunded, academic efforts to introduce one or two little bits of nature back but something much larger, more widespread and popular. We do it for plants; we ought to be able to do it for animals. That is what I aim to do in Amendments 205A and 257D.
Amendment 253 looks at land that has been seriously rewilded and asks whether we can take that rewilding just one bit further. If a rabbit or deer dies in a rewilded estate, the carcass lies where it is and is consumed by whatever carrion eaters are around, be they beetles, fungi or birds, but that is not true of the stock used to maintain the landscape within a rewilding scenario. If a sheep or cow dies, the carcass has to be removed. If we want the rewilding to be truly natural, we ought to explore the possibility of leaving that carcass to be consumed in a natural way.
This is already being done in Holland. A month ago, I sent my noble friend some detailed information on what happens there. I would very much like the opportunity to explore with him whether this might be a relaxation we can bring into the UK. Again, things need to be done in a controlled way. You do not want an animal with a serious disease left out as a carcass, but all that is required in Holland is a veterinary inspection. That seems to work well. I hope we can do the same here. I beg to move.
Baroness Bennett of Manor Castle (GP) [V]
My Lords, it is a great pleasure to reopen this debate in the confident conviction that the entire nation of England is glued to our deliberations this evening. As a reminder, we are covering the group comprising Amendments 205A, 253 and 257D, all in the name of the noble Lord, Lord Lucas, who did a very clear job of introducing them before the break.
However, I am not quite as convinced as the noble Lord about the ease of plant reintroduction. I think about tree planting on the edge of the moors outside Sheffield, hacking through thigh-high bracken and its accompanying roots. I have not yet been back to see how those new trees are, but we are talking about animals here and these amendments, particularly Amendments 205A and 257D, address the exciting development of what is being called “recovery through reintroduction”. This excites individuals and communities. The focus is often on larger, charismatic species, such as large herbivores and some carnivores, but excellent work has also been done on red squirrels and pine martens in an interrelated way. Perhaps, however, these two amendments are most relevant to the smaller and the more local, such as insects and maybe small mammals—recovery and reintroduction efforts that might be taken up by a small local group. In Sheffield, when we were deep in the controversy over felling street trees and a great deal of time and effort went into preserving the Chelsea Road elm—on its own terms and for one of the UK’s most threatened butterflies, the white-letter hairstreak—many people came up to me seeking schemes to see how they might be able to preserve it.
There have been so many success stories of reintroduction over the past 30 years: the red kite, the bittern, the pool frog, the natterjack toad, the sand lizard, the smooth snake, the chequered skipper butterfly, the enigmatic ladybird spider and, of course, the beaver, about which I spoke previously. However, to truly restore our ecosystems, our biodiversity, our nature—as the noble Lord, Lord Blencathra, prefers—we need much more. We live in one of the most nature-depleted states on this planet. From the Tudor age onwards, when a war on so-called vermin was launched, there has been a war on wildlife in these islands, which was then explosively accelerated through the destruction of the 20th century. Turning it around requires enlisting the support of what is also a nation of animal lovers.
I am interested to hear the Minister’s response to the sentiment behind these amendments, which certainly deserves to be supported and encouraged. Again, this is not something that can be centrally controlled by Westminster. It needs local initiatives and local and regional action. A sentence in Amendment 253 optimistically looks forward to a partially rewilded island, where nature can be allowed to operate its natural cycles of energy and resources. This also raises an important issue.
Baroness Young of Old Scone (Lab) [V]
My Lords, I speak to Amendment 253, in the name of the noble Lord, Lord Lucas. I used to hate the EU forms’ DoC requirements and regarded them as one of the more pernickety impacts of EU membership, which is quite a thing for someone who is very anti-Brexit. However, they were vital to deal with issues such as the mule pits that used to be a horror on the edge of most Spanish villages, where you could go and fling your donkey when it died. They were probably a bit overengineered for the UK, but across Europe these regulations had a big impact on big scavenging birds such as kites and vultures.
We can tell from Shakespeare that it is not new for hygiene and biodiversity to come into conflict. In Shakespeare’s time, kites lurked on street corners in London picking up carrion and rubbish. I would quite like to see kites back on every street corner in London, but I do not think I will ever see that in my time.
I support the modest amendment by the noble Lord, Lord Lucas, which would mean that dead farm animals could be left uncollected in rewilding areas to allow necrophagous—don’t you just love that word?—bird populations to take their proper place in these naturally rewilding ecosystems.
It has been a long day today on the Environment Bill so I would like to introduce a more frivolous moment into the Committee. If I had my way, I would like to see this provision of letting stock lie where they die extended to all upland areas, not just rewilding areas. I have always fancied a sky burial, where I could be useful food to some of these necrophagous birds, including even corvids, though I would prefer a more magnificent kite to clean my bones. Who knows? In spite of there being no fossil record of vultures in the UK, climate change might well mean that the UK could become suitable, in climatic terms, for vultures. They are already moving north in France. However, that would need a sufficient supply of carrion to be left lying around. I am sure the Minister would agree that being picked clean by a vulture would be really something, but that is probably a bird too far so I will restrain myself and simply support the noble Lord’s Amendment 253.
Baroness Bakewell of Hardington Mandeville (LD)
My Lords, I am not sure I can follow that.
I believe the noble Lord, Lord Lucas, has laid out the case extremely well for all three of his amendments in this small group. Amendment 205A would give power to relevant civil society organisations attempting to regenerate populations of extinct insects and other animals, especially those that may have had a regional presence. This is a very worthy aim and one that I support. However, I urge caution over the reintroduction of some insects that, when they were alive, had an adverse impact on the countryside, wildlife or humans. I am sure the noble Lord does not wish to reintroduce an insect that was a persistent pest and had no useful purpose.
Amendment 253 relates to allowing fallen stock to remain on land for the consumption of flesh-eating birds and insects—noble Lords will note that I have gone for the easy pronunciation here. I support this with the proviso that the fallen stock has not died from a disease that might spread to other stock or to humans; we need to be careful about that. To ensure the survival of many insects and birds, it is really important that they have something to feed on. Fallen stock and, indeed, fallen trees should be left not only to feed birds and insects but to provide essential nutrients to the soil. I have read Isabella Tree’s book on rewilding and she makes a very powerful case for letting things be. In the past, if an oak tree was in danger of falling or was rotten at its core, the answer was to fell it and take away the remains. It is now recognised as far better for it and for other dead trees to be left for beetles, insects and fungi to feed on. That increases our much-depleted biodiversity.
Amendment 257D relates to the captive breeding of wild animals and their subsequent release back into their natural environment. We have seen beavers returned to the wild in Cornwall and Devon and Scottish wildcats bred in captivity now living in a safe reserve in the Highlands. I support these programmes but accept that they are not always universally welcomed. There has been discussion and nervousness about the possible release of wolves into Scotland. I accept that care will need to be taken over just what is released and where, but captive breeding programmes have helped many animals and birds. Ospreys and sea eagles—magnificent birds—are making a significant return, the latter right across the country from Scotland down to the Isle of Wight. If you are lucky enough to see one soaring overhead or diving down to catch prey out of the water, it is a sight that you will never forget.
The noble Baroness, Lady Bennett of Manor Castle, has spoken about conserving pine martens, red squirrels and butterflies, and reminded us that our biodiversity is in a very poor state—one of the worst in Europe. The noble Baroness, Lady Young of Old Scone, has spoken about donkey cemeteries and the time when kites scavenged on the streets of London, and reminded us of the role of vultures. I think it was the bird sort that she was referring to.
This is a niche group of amendments but one that deserves to be taken seriously. I hope the Minister will agree.
Baroness Jones of Whitchurch (Lab)
My Lords, I thank the noble Lord, Lord Lucas, for enabling us to have this interesting debate. He is rightly challenging us to think through what steps are necessary in practical terms to reverse the declining biodiversity, to which we all aspire. One way would be to let nature take its course, with all the stops and starts that would entail. Another way is to give nature a bit of a helping hand, which is really what he is proposing. He is rightly challenging us to be more ambitious about this, so I am interested in his suggestion about accelerated breeding programmes.
Of course, this is already happening in a controlled way in some circumstances, as the noble Baroness, Lady Bennett, mentioned in the previous debate. We all welcome the programmes of beavers being released into the wild, which brings with it the added benefit that they are happily engaged in building dams, which slow the river flows. She has again mentioned a number of precious species today, including red squirrels and pine martens, with actions being taken to reintroduce them, all of which is very welcome.
Some other animals might not be so welcome, particularly to adjoining farming communities where livestock might be at risk, so I caution that this needs to be done with care and expertise. Rewilding takes time, otherwise there is a danger that introducing one new species could have an adverse effect on other species that are already established.
Similarly, the noble Lord, Lord Lucas, raises a very interesting point about animal carcasses in rewilding projects being allowed to remain on the land—again, effectively letting nature take its course. As the noble Baroness, Lady Boycott, pointed out in an earlier debate, vultures have played an important role in clearing carcasses in parts of Africa and Asia. We have also heard again today from my noble friend Lady Young of Old Scone about mule pits in Spain and indeed the kites scavenging in old London. It is a very vivid image.
Of course, death is not pretty and this would not be, but we would only be applying the same principles that already occur for smaller mammals. Dying animals may well prefer to be left with their herd to die, rather than being culled or taken elsewhere to die or indeed to be slaughtered. On the other hand, this would need to be managed carefully. It cannot be a substitute for taking care of the stock, and we certainly would not want it to be used as a money-saving exercise. Nevertheless, as the noble Lord points out, this is what a true rewilding exercise would really entail. I therefore welcome his contribution and look forward to the Minister’s take on the issues raised.
Lord Goldsmith of Richmond Park (Con)
My Lords, I declare a personal interest in rewilding, which goes back a very long way. I am a strong advocate of supporting species recovery and have been excited to see this issue catch on. I welcome my noble friend Lord Lucas’s interest. Well-managed releases of native species, including reintroductions of formerly native species, are a really important aspect of this. However, they can be complex and can carry risks, including for the animals themselves. The taking of animals from wild populations, or poor-quality breeding programmes and releases, can undermine conservation efforts. We should continue to work in a targeted way, under existing regulations which already make provision for the taking of protected wild animals under licence.
The Government are already taking positive steps to reintroduce and release native species, such as the pine marten in the Forest of Dean, which has been credited with reducing grey squirrel populations elsewhere, and the pool frog in Norfolk. I will take this opportunity to celebrate the wonderful work to reintroduce white-tailed eagles on the Isle of Wight in a project led by the Roy Dennis Wildlife Foundation supported by Forestry England. They released the first birds two years ago, and there were further releases last year, to local acclaim and excitement.
Lord Lucas (Con) [V]
My Lords, I am always happy to receive a letter from my noble friend. I will address the subjects that I raise in these amendments in reverse order. I understand what he is saying about fallen stock, but I very much hope that the authorities in this country will take a careful look at what the Dutch authorities have done. They have proceeded in a very cautious and sensible way, and they have not encountered a great deal of problems. As I say, there is veterinary inspection of the carcass before it is left. It is not something done at random.
In any rewilding situation, quite a lot of large animals die naturally and are left naturally, because they are not part of the harsh, farmed population, as it were. This is not that big a step if it is done carefully. Perhaps it is something that can be done in small steps, so that we see how it goes, but we ought not to be afraid of creating a truly wild environment. As with the introduction of wolves or lynx, it is a decision to take carefully—I am not sure that the residents of Eastbourne would fancy having an eagle owl circling over their prams, but, none the less, it is something that we should think through and explore. In other parts of the world, we are encouraging people to keep tigers going; that is a different measure of risk that we are asking people to take. We ought to be conscious of what we are asking of ourselves compared with what we are asking of other people.
So far as dealing with common native species is concerned, yes, a thousand grasshoppers is wonderful, but why a thousand? Why not 10 million? That is particularly true when you are talking about things such as glow-worms and crickets, which really do not move far as adults, and where the larval species do not spread a great distance and are probably incapable of crossing a road, and so large areas of the country are—within our lifetimes and probably for several centuries—effectively inaccessible to natural rewilding and natural reintroduction, however many natural corridors we introduce. Where species are known not to be a danger to ecosystems and are a natural part of ecosystems where they exist, and the problem is that we have wiped out most of them, we really ought to do something about that. The key is allowing breeding on a large scale. This will not happen if we restrict it, as I say, to academic exercises that think we should celebrate 500 glow-worms or a thousand grasshoppers. That is not the level of challenge that we have.
I agree that we ought to move carefully: we ought to move with advice. None of this should be done without, say, the local wildlife trust saying: “Yep. Okay, we’re happy with that”. Any organisation involved in breeding ought to be carefully supervised. We need to get the public involved in these things and allow them to say: “I want lizards in my garden”, “I want a slow worm in my garden”, or “I want to see glow-worms in the park when I go for a walk at night. Can I have that?” The way to get nature back on the scale that we need is to say okay, let us do that. I very much hope that the species reintroductions task force will bend its mind to that at some stage. For now, I beg leave to withdraw the amendment.
The Deputy Chairman of Committees (Baroness Finlay of Llandaff) (CB)
We now come to the group beginning with Amendment 205B. Anyone wishing to press this or anything else in this group to a Division must make that clear in the debate.
Amendment 205B
“(1ZA) A public authority which has any functions exercisable in relation to England must exercise those functions consistently with the aim of furthering the general biodiversity objective and to conserve and enhance the species and habitats listed under section 41.”Member’s explanatory statement
This amendment would ensure that public authorities exercise all of their functions in a way that is consistent with furthering the biodiversity objective, extending the current duty which is limited to certain policies and objectives considered to be appropriate, and placing particular emphasis on species and habitats of principal importance.
Baroness Jones of Whitchurch (Lab)
My Lords, in moving Amendment 205B, I will speak also to Amendment 210 in my name and add my support to the other amendments in this group. This group returns to the application of biodiversity but in a different context from the previous debates that we have already had. Amendment 205B would require public authorities to act to further the general biodiversity objective and to conserve and enhance the species and habitats that are important to our biodiversity. This would underline biodiversity as a critical factor in all authority decisions, including planning and spending decisions.
The amendment builds on the concession made during the Commons consideration of the Bill, in which it was made clear that public authorities have a responsibility to enhance, as well as conserve, biodiversity. Our amendment takes this one step further by seeking to ensure that biodiversity is integrated into all decision-making.
Our Amendment 210 adds a specific obligation on public authorities to support biodiversity growth through planning decisions. This is a crucial issue that has been touched on several times during the consideration of this Bill. As noble Lords will know, there is a huge concern about the impact of the planning White Paper on biodiversity net gain at a local level, and we would like to understand more about how these two policy initiatives will interact.
The planning proposals are of course aimed to fast-track housebuilding in development areas without the normal local involvement, so it is still not clear how individual schemes will be assessed from an environmental and sustainability point of view. With sustainability appraisals scrapped and environmental impact assessments not carried out at outline stage, how will a developer’s green footprint be judged?
These are real concerns that have been echoed by the recent report of the Environmental Audit Committee, Biodiversity in the UK. It makes clear that it feels that there is a “series of deficiencies” in the policy, and recommends that
“The Government should explain how and when it will move to embedding environmental net gain in the planning system, with clear actions and milestones”.
It also recommends that
“The Government should strengthen local authority capacity and enforcement mechanisms to deliver biodiversity net gain”
on the ground. Our Amendment 210 is a first step to achieving this. This is very much in line with Amendment 209, from the noble Baroness, Lady Parminter, which we heartily endorse. These are critical issues for making the reversal of biodiversity loss a reality. I beg to move.
Baroness Parminter (LD)
In introducing Amendment 209, I am grateful for the support of the noble Baronesses, Lady Young of Old Scone and Lady Boycott, and my colleague and noble friend Lord Teverson, who have added their names to it.
I very much welcome the Government’s introduction of the local nature recovery strategies—I see them as a really critical tool in capturing the value of the natural environment and ensuring that local communities can have their priorities reflected. But as they stand, the problem is that local authorities only have to “have regard to” the local nature recovery strategies; they do not have to act in accordance with them. My amendment seeks to reverse that, so that all the good work done by local authorities in producing them can be utilised, ensuring that they can be effectively integrated with other local plans and programmes.
As the noble Baroness, Lady Jones, just highlighted, the biodiversity net gain and the other biodiversity requirements put on local councils, including the local nature recovery strategies, will be incredibly resource intensive. These new local nature recovery strategies will be data-driven, map-based and about identifying protected sites and other areas that make a real contribution towards delivering environmental and biodiversity aims. They will require a lot of conversations and consultations with relevant stakeholders—landowners, farmers, local people and businesses—and we want to make sure that all that consultation, of working locally on the ground to identify sites that are important to people and that people feel need protecting, is valued and respected.
Once these strategies have been developed, they will then be able to link up all the various other things such as biodiversity net gain, the environmental land management schemes and the nature for climate fund. They will be a really important tool for bringing all of these together. But if the local authorities and other bodies do not have to act in accordance with them, all that good work of consultation, and all the resources put into them, will go to waste.
The Earl of Caithness (Con)
My Lords, I listened with care to what the two noble Baronesses have said, and I support their arguments. They made some very valid points.
I am speaking to my two amendments in this grouping. Amendment 210A simply requires that Natural England has particular regard to nature-friendly farming. It has to
“have regard to … local nature recovery strategy, and … any relevant species conservation strategy or protected site strategy prepared by Natural England.”
One thing that has been missing in a lot of our debate over six days is the role of the human being in all this. We have talked a lot about biodiversity and what we can do to increase it, but what matters just as much is the role of the farmer and the landowner, because they are going to implement the policy. I was thrilled when my noble friend Lord Goldsmith, said on the amendment we have just discussed on biodiversity net gain, words to the effect of: “We are able to farm in a nature-friendly way.” I thought: “Good. My noble friend and I are on the right track together.” It is hugely important.
At the moment there is a Nature Friendly Farming Network that thousands of farmers have joined; it is doing tremendously good work for the environment at very little extra cost to the taxpayer—and sometimes at a cost to their own pockets. These are exactly the sort of people we need to encourage. The farmers are not particularly pleased with this Government at the moment. There is far too much uncertainty and change and, as we all know, the age of the average farmer is so high that they are finding it hard to adapt to all the pressures. I was really pleased by what my noble friend said, and I hope he will consider the amendment about biodiversity. The Bill cannot just be seen in isolation. We have to involve the human being—the farmer and the landowner. They are the people who will alter things on the ground.
Besides the Nature Friendly Farming Network, there is of course the Game & Wildlife Conservation Trust. We often talk about the UK being a world leader. We have on our own shores a world leader in this organisation. It has demonstration farms in Scotland and England, and has farmed for biodiversity for many years. It advises individual farmers and clusters of farmers, and does an awful lot of work for Defra. I urge my noble friend to visit its Allerton project. He and I have spoken about this before. The work and scientific research it does are so important. We cannot now take for granted everything I learned when I was a boy and a young man, working on the farms and the land. To convince the rest of the country, we have to have it scientifically proven. This is what the Game & Wildlife Conservation Trust has been doing so well. I hope that my noble friend, besides talking to us, will spare time between now and the next stage to visit it in Leicestershire. It would be an easy half day for him, and I think it would be very beneficial.
I turn now to Amendment 293, to which I am a signatory. It is in the name of the noble Baroness, Lady Young of Old Scone, and is on a subject that both she and I have been going on about for quite a long time: the land use strategy for England. Perhaps we need no better excuse for introducing this amendment than what the noble Baroness, Lady Parminter, said about Horsham District Council and the problems it faces. I have said it before, and I will just briefly repeat myself: the Climate Change Committee reckons that we will have to transfer about 21% of our agricultural land out of farming. To feed ourselves, we will have to increase productivity by 10%. We all know that productivity has been flatlining in agriculture for many years, so this is going to be a hugely serious problem to try to tackle.
The noble Baroness, Lady Young of Old Scone, will wax much more lyrical than I will on this, so I will not say very much except that it is again about the human input into this. There are so many pressures now on the countryside: the building of new railways, new developments and housing schemes and, I repeat yet again, the threatened planning Bill, which is coming our way next year. That frightens me because it will undo quite a lot of the good in this Bill and in our climate change agenda. We will have to support these farmers and accept that they have got to increase their productivity.
We have talked about land being lost for biodiversity net gain. That is another pressure on the countryside. Surely, it is high time that England followed the lead of the other countries in the UK—Scotland, Wales and Northern Ireland—in producing a plan of how it will use the land. It is the only way that we will make progress in a sensible way without having constant fights at all levels. We need a strategy from the Government: should we actually be farming our grade 1 Lincolnshire fen farms, which we are told have very few harvests left? Every time they are farmed, they are perhaps one of the greatest emitters of carbon in the agricultural sector. It is a terrible thought that our grade 1 land might not be farmable or should not be farmed, but we need to address that now before it is too late. I therefore give my full support to the noble Baroness, Lady Young of Old Scone, to get a land use strategy for England.
Lord Lucas (Con) [V]
My Lords, I am delighted to be part of this group and to be supporting the noble Baroness, Lady Parminter, in her Amendment 209. If we are to have nature recovery strategies, they have to be followed. I touched on this in a previous group in relation to biodiversity gain and planning consents. If that great source of nature improvement is done willy-nilly, with no reference at all to the nature recovery strategy, what is the point of the nature recovery strategy? This is one of the main ways in which things are going to improve. Why is it disconnected? Amendment 209 from the noble Baroness would reconnect it and other things in a most useful way.
My own amendments in this group are aimed at seeking remedies to things which seem to me, from my experience locally, not to be working as well as they might be and which could be made to work better, under the structures proposed in this Bill, with a bit of additional power. First, I observe that, within the land owned by the local council, there are substantial SSSIs which are supposed to be chalk downland and which are actually largely bramble. How has that come about? I think it has come about because the negotiations on what should be done are conducted between a council that is extremely willing but short of money and Natural England, which understands that and does not see the purpose of pushing a long-term relationship harder than it reasonably can. The net result is that things go gently backwards.
Baroness Young of Old Scone (Lab) [V]
My Lords, what I am hearing around the House is that everybody is feeling rather anxious about a lack of join-up between a whole load of mechanisms that are being invented or pre-exist, so that they run the risk of nullifying each other, or at least making life very difficult for each other. So I feel justified in speaking to my Amendment 293, and I thank the noble Earl, Lord Caithness, for his support. Some noble Lords will recognise that this is a revamp of an amendment to require the Government to draw up a land-use framework which I raised during debates on the Agriculture Bill. The Government indicated that the Environment Bill would be a much more appropriate place to deal with it, so here it is. The Government may possibly now say that the planning Bill would be a more appropriate place, in which case I shall raise it there too, because the noble Earl, Lord Caithness, is right that I have been banging on about this for a long time, and I intend to continue banging on about it until I get it.
There are huge pressures on land, and they are growing. There is pressure for increased food security, carbon storage, biodiversity, flood management, trees, increased timber for self-sufficiency, recreation, health, built development, housing and infrastructure—there are multiple pressures on land. The University of Cambridge Institute for Sustainability Leadership conducted demand and supply analysis and found that, to meet a growing UK population’s food space and energy needs while increasing the area needed to protect and enhance the nation’s natural capital, the UK would need to free up an additional 7 million hectares. The land for that is simply not there. The UK as a whole is only 24.25 million hectares, so about one-third more land would be needed to meet imminent pressures, and we simply have not got it.
As we tackle these multiple pressures for land, we are hampered by the lack of a common framework within which to reconcile these competing needs. I have been going around trying to prompt a debate on the need for a land-use framework for England, because Scotland, Wales and Northern Ireland already have such frameworks and are using them, with greater or lesser effect, to guide policy on these competing areas of need. Many countries across the globe have land-use strategies—even China, as we heard at our Select Committee last week—so, it is long overdue that England should develop and use such a framework. This issue was identified by the Select Committee on the Rural Economy two years ago: it recommended that there should be an England land-use framework. The Commission on the Future of Food, Farming and the Countryside—I declare an interest as a member—has identified this as a major issue and is conducting a pilot land-use framework for Devon, which may encourage the Government to see whether they could adopt it on a national basis.
Since we debated this issue during the passage of the Agriculture Bill, several other spatial planning issues have arisen. The Government have made a commitment, in the England Trees Action Plan, to major expansion of woodland. Where are the best places for trees to go that do not undermine the other valuable land uses, such as agriculture? What is the answer to that? We need a land-use framework to tell us. The new farming support regime, as the noble Earl, Lord Caithness, outlined, will result in substantial land-use change. Local nature recovery strategies already have a quasi-land-use planning role but could well raise major challenges to local development plans, as has already been outlined. The changes to the planning system heralded in the Government’s White Paper will impact on the use of land, but traditionally, the planning system does not cover, in any real way, rural agricultural land. Net biodiversity gain will require land to achieve that gain. Can the Minister clarify how all these mechanisms are to be integrated and not bang into each other?
Land is a finite resource—we are not making any more—and we desperately need a strategic land-use framework to maximise the value to wildlife, development, the economy and people. If the Minister disagrees, will he outline how the Government intend to reconcile the increasing competition for land? The risk is that these separate systems will encourage particular land uses in particular places, with decisions taken in silos without a more strategic view on how to get the right use in the right place and maximise the benefit of the precious resource that land represents.
I also support Amendments 209 and 210. I have put my name to Amendment 209 in the name the noble Baroness, Lady Parminter. It makes the vital link between local nature recovery strategies and other land use decisions by public authorities. It was put vividly by the noble Baroness. The Knepp example is being replicated over the country. Our local version in Bedfordshire is that the local native recovery strategy is beginning to identify, from rigorous scrutiny of the data, that the North Bedfordshire Wolds is probably the most important area of open countryside left in Bedfordshire, but the local plan has been developing new town proposals to put new settlements of 6,000 to 10,000 inhabitants right in the middle of the North Bedfordshire Wolds—so not much join-up there then. I therefore support the need for local nature recovery strategies to have legal status, so that planners and developers have to take account of them. Amendment 210, in the name of the noble Baroness, Lady Jones of Whitchurch, aims to make a statutory link between local planning decisions and biodiversity in all the decisions that public authorities make.
My last point is a practical one. Local authorities have, almost universally, reduced the number of ecologists they employ; two out of three local authorities do not have an ecologist on their staff. We need proper integration of all these new and existing mechanisms for land use, and ecologists will be vital to that task, so we need to ensure that local authorities are properly funded to be able to do this job.
Baroness Jones of Moulsecoomb (GP)
My Lords, it is a delight to follow the noble Baroness, Lady Young of Old Scone. I completely agree with her about leaving out one’s body for the birds to pick over the bones. Personally, I would not mind corvids; they are very bright, so I would not have a problem with that at all.
For all those who would like to know about the footy, it is 1-1 at the moment. Denmark scored first.
While we are talking about corpses, I will throw in my own story. In Norway, in 2016, a herd of wild reindeer were electrocuted. There were 232 animals—calves, parents, everything—who all died simultaneously. Rangers in the area decided to leave the corpses and watched for several years to see what would happen. The biodiversity explosion was huge; it was not just predators, birds, insects and everything that fed off them, but the plants and fungi that were a by-product of all this activity. Biodiversity is aided by corpses. This is probably not an option for most local authorities, but it is something that individual gardeners could use when they find dead animals, if they can stand the smell.
The amendments in this group are part of the wider task being undertaken by your Lordships’ House to insert the strong legal mechanisms that will give effect to the ambitions of this Bill. The Bill should be a watershed moment for the conduct of government and public administration, but we are missing loads of opportunities to have any sort of impact. Amendment 205B, moved by the noble Baroness, Lady Jones of Whitchurch, would be a turning point for public authorities. We need public servants to recognise their roles as stewards of the environment and the natural world, and this amendment would do that. Every function and decision should be made with the environment and ecosystems at the forefront of the decision-maker’s mind. In the 21st century, that should be a fundamental principle of good governance.
Amendment 232 of the noble Lord, Lord Teverson, then ensures these new powers and duties on public authorities are properly resourced, so they can be delivered. We all know about the massive cuts to local authorities that have been happening over the past 11 years and, honestly, I am staggered that local authorities can carry on with all the services they manage to, but we cannot allow a situation where ever more duties are placed on local authorities, while they still struggle with the effects of austerity. The Government have to invest in good-quality local services and invest massively in a transformative programme to repair our natural world. The two cannot be put into conflict; the Government must make resources available to local authorities to deliver both with excellence. I hope we will revisit these two points on Report, because they are important to delivering the ambition of the Bill.
I have been watching today’s business from my office, trying to get on with other work, and the stamina shown by noble Lords still in the Chamber is absolutely staggering. I admire your fortitude and energy. Let us all hope that we do not have to do this again too often, because the Government will accept loads of our amendments.
The Earl of Devon (CB)
My Lords, it is always a great pleasure to follow the noble Baroness, Lady Jones of Moulsecoomb, and to address these amendments, which are focused on the highly valuable local nature recovery strategies.
I am very supportive of the addition suggested by the noble Earl, Lord Caithness, of “nature-friendly farming” to new subsection (2A) of the Natural Environment and Rural Communities Act. As I explained in an earlier debate, I am concerned that this House should temper somewhat the risk of environmental tyranny inherent in the Bill and ensure that we remind ourselves and local authorities that the core purpose of land management across these islands over many hundreds of years has been the production of healthy and nutritious food. I wonder whether the noble Baroness, Lady Boycott, who will follow me, might agree with that.
I am also strongly supportive of the efforts of the noble Lords, Lord Teverson and Lord Lucas, to ensure that local nature partnerships and our diversity of local community members should have real input into local nature recovery strategies. These amendments go to a point that has been debated previously in Committee over the role of local communities and local land managers within the setting of local environmental targets. I was pleased when the Minister accepted the crucial importance of that. If local nature recovery strategies are to be a success, they must be developed in consultation with those who manage the land—those whose living derives from the land—as well as those who enjoy the land for their health and well-being. Local nature recovery strategies should not be determined by central edict from Westminster or by well-funded special interest lobby groups with no local mandate.
I too offer my strong support to Amendment 293 in the name of the noble Baroness, Lady Young of Old Scone, and I applaud her tireless efforts to introduce a land-use strategy for our agricultural land. She indeed raised this during the passage of the then Agriculture Bill, at which time it seemed very sensible but maybe not essential. However, now that we are layering on top of ELMS so many other competing and potentially confusing land-use imperatives, it has become clear that we need to consider afresh what we really want of our land and to prioritise those imperatives accordingly.
I am grateful to the noble Baroness, Lady Young, for the Cambridge University statistics, which counter the Minister’s earlier and surprisingly off-the-cuff assertion that we have sufficient marginal land to do all that is needed. I am not sure that is strictly true. We are a very small and heavily populated island with an incredibly long-established culture of intensive and successful land use. As I alluded to earlier in reference to biodiversity net gain, what we are asking of this green and pleasant land is arguably far more than it can deliver. Between housing, renewables, biodiversity, leisure and food production we are in very real danger of exhausting our much-beloved countryside. We need to find a means of developing a joined-up and dependable land-use strategy, informed by local communities and land managers, that delivers on our national priorities.
Finally, the Knepp estate has come up often in these debates and I should comment on it. I have always been hugely impressed by its achievements. However, I have always understood that the reason the Knepp estate chose to rewild was that it was relatively low-grade agricultural land that was not agriculturally productive and that it wished to do something remarkable with it: to recover nature and to provide public access and education. By putting a housing development approximate to Knepp, is Horsham Council not delivering directly on that ambition, converting low-grade adjoining farmland to housing and providing comparatively ready access to remarkable biodiversity for the benefit of the community’s health and well-being? As an additional bonus, Knepp can be paid to provide ecosystem services to that community, so it would seem potentially like a win-win situation.
Baroness Boycott (CB)
It is a great pleasure to follow the noble Earl, Lord Devon. I have just been camping at Knepp for three nights—Friday, Saturday and Sunday—so I walked the land extensively, went on guided tours and saw the work being done. He is not correct when he says that a housing estate next door will in fact be of some kind of educational benefit. The whole point of Knepp is that a wildlife corridor was going to be created where this new housing development is that would take the birds, as well as some other animals, to the sea.
I support the amendment in the name of the noble Baroness, Lady Young of Old Scone, because we need a rethink of how we look at land and what we do. We need to start using things imaginatively such as the middles of towns for people to live in. I live outside Taunton, the town centre of which has completely fallen apart in the last couple of decades. There are empty shops and closed-up buildings; there is no life in that town. Instead, you have miles and miles of small boxes outside the town that are extremely environmentally non-sustainable. They are miles from the schools and the town centre and the place has become a doughnut—it has that sort of hollowed-out feeling.
Unless we start to reimagine how we want to live, of course we will go on having the problems that we have all talked about, and 3,500 houses will continue to be put on the Knepp site. Storks have just been brought back and there are now about 120 storks flying around. We had lunch on Sunday under three trees where there were storks’ nests. It is completely magical. Those creatures will go if they suddenly find that they are under houses. The noble Earl, Lord Devon, is right: the Burrells decided to rewild Knepp because their land was not productive. They were losing £150,000 a year in 2000 and felt that they could not go on drowning the site in chemicals and trying to make weak soil support high-yield crops, so it was logical to rewild that site. However, they have no ambition to rewild the whole of England. They know that Knepp is a site of special interest and should be seen in that way—as an educational tool. It is buzzing with researchers from all over the world who are studying everything, including how a pig’s trotter makes a little pool that enables a particular flower to feed, which in turn has brought back the turtle dove. They have found all those connections that had been completely lost.
Of course we need good food, good farming and grade 1 land, so I hugely support the noble Earl, Lord Caithness, when he says that agro-ecology and agro-friendly farming have to be the way forward. I have recently been to the Groundswell conference, which is about min-till or no-till, whereby one makes just slices through the earth and does not disrupt the magic of our soil. Just as many crops are being grown without the inputs. We can do it.
I come back to the amendment of the noble Baroness, Lady Parminter, to which I have put my name. What really matters in this is that if we do not give local authorities the ability to stand on their own two feet and enforce rules on people, we take away their agency. If one looks at causes such as the transition towns or Incredible Edible Todmorden, these are absolutely miraculous and wonderful community initiatives that have brought life, health, friendship and masses of plants in all sorts of forms back into the middle of towns. It destroys one’s belief in the system if one constantly fails, if the housing development goes up against all local opposition and if, over and again, one’s voice is turned down. We are going to need all those local people with vested interests in their local community if we are really going to make a difference. It is therefore blindingly obvious that local authorities need the teeth of this amendment to fight off any imposed housing quotas. We have to put nature first in the planning system. It is not tangential and we do not have an option.
Lord Teverson (LD)
My Lords, once again, I declare my interest as chair of the Cornwall and Isles of Scilly Local Nature Partnership, which is rather relevant to a couple of my amendments.
I want to go back to the basic argument of what the Bill is about. There is a real issue—an emergency, as I and many others would describe it, in biodiversity and the quantum of nature in England. Because of that we have this Bill. It is about doing something—and we have to do something. However, while we all welcome nature recovery networks as a great initiative in the Bill for which I congratulate the Government, when we have that emergency and we have seen how the Aichi targets over the past 10 years mean that we have gone backwards in this area, we need those nature recovery networks actually to work. Exactly as the noble Lord, Lord Lucas, said, if we do not do that, what is the point?
This group is about the rubber hitting the road, if you like. This is “make your mind up” time. Are Nature Recovery Networks and biodiversity targets going to be something we can all feel good about because they are in legislation, or will they make sure there is change over the next decade? That is the choice that the Government have in these amendments. I will be very interested to hear the Minister’s response.
There is a great deal going on, as we have heard from noble Lords. If the biodiversity targets that the noble Baroness, Lady Jones of Whitchurch, described so well, are not implemented and joined up with the fundamental area of planning, we are throwing away this opportunity. We must tie it up with land use and farming, as the noble Baroness, Lady Young of Old Scone, and the noble Lord, Earl Caithness, have mentioned. Roughly 75% of England is agricultural, and if we get that right we can move forward in terms of biodiversity.
Farming is crucial to making nature recovery networks and biodiversity work. We have to tie that up with the organisations that have these responsibilities already, exactly as the noble Lord, Lord Lucas, said: drainage boards and the Environment Agency. That is true as well. I believe that it is essential, and I think the Committee does, that there should not just be “regard” for these nature recovery networks. They have to be embedded, planted, and statutorily mandated to comply with them. Otherwise, they will not have strength.
Down in Cornwall, as the Minister is probably well aware, we have a lot of beaver introductions—we were talking about those earlier on—and have gone through one of five nature recovery pilots. I have been very much involved, as chair of the local nature partnership. It is a great exercise to go through. The noble Earl, Lord Devon, talked about consultation with local communities. We have to get that buy-in, and I am pleased to say that some 700 people were involved in consultation with our pilot in Cornwall. We have a really good scheme there, but, coming back to one of my amendments, how the heck are these going to be resourced?
There are two necessities here: one is tying and mandating their use with other machinery, whether it is the Planning Act or agriculture—we will come onto ELMS in the next group—but there also have to be the resources. The noble Baroness, Lady Young of Old Scone, said local authorities do not have ecologists at the moment. We have to have them so they can work on nature recovery networks as well as net gain. If we do not have the resources to develop nature recovery networks and get them to work, how will it happen?
The Government might say that we have the environmental land management scheme, with £2.5 billion worth of state aid to buy public goods, but I do not see that necessarily fulfilling the needs of nature recovery networks entirely. We have net gain; I hope most of that net gain will be done onsite, and there are potentially ways of having resources there, but those two together are not enough to make nature recovery networks work. How are we going to resource the implementation of these strategies? Those are the fundamental points.
In terms of my other two amendments, local nature partnerships were, I was sad to see, not even mentioned in the Bill. They came about through The Natural Choice: Securing the Value of Nature, the natural environment White Paper of June 2011. They were never put on a statutory basis, but they exist throughout England, full of people from all walks of life. In Cornwall and Scilly, we have local authorities, the Environment Agency, Natural England, farmers, ecologists and ordinary independent directors to make nature work in our region.
Lord Goldsmith of Richmond Park (Con)
I thank the noble Baroness, Lady Parminter, for tabling Amendment 209. I would like to assure her that I share her enthusiasm for local nature recovery strategies. These strategies are a key provision in the Bill, which will empower local people across the country to identify where action for nature and the environment would have most impact, and where investment in new habitat recreation or restoration will achieve best outcomes for biodiversity.
Local nature recovery strategies and the measures in the Bill lay the foundation for the establishment of the nature recovery network, but they are not binding plans that must be followed. They are intended to guide rather than compel action, with delivery supported by incentives as well as duties. Requiring public authorities to “have regard” is therefore appropriate in that light.
The Government have already committed publicly to local nature recovery strategies informing development plans and future schemes that reward environmental benefits, as well as targeting biodiversity net gain, and I am happy to reaffirm and restate that commitment today.
While I cannot comment on the ongoing development of councils’ local plans, I can say that, when preparing their local plans, local authorities will have to have regard to their local nature recovery strategies, which will tell them where housing can be developed with lower impacts on nature. I have said this before, but I strongly agree with the noble Baroness, Lady Boycott, about Knepp. It is magical, and I have to say that it is hard to see how it can be enhanced by a giant new housing development next door to it. But it is also true, as the noble Baroness said, that no one is expecting every farm in the country to become a mini-Knepp; that is not the idea. But, at the same time, for the reasons that the noble Lord, Lord Teverson, outlined very powerfully today and in many speeches, we do want lots more Knepps, because they would be like a bank of biodiversity that could spread its treasures across the land—so we do want a network of Knepps, absolutely.
Moving on to Amendment 210, I can assure the noble Baroness, Lady Jones of Whitchurch, that it is the Government’s view that the policy outcomes of this amendment are delivered already through the Bill as drafted. The wide range of existing legal and planning policy protections for sites, species and habitats will be complemented by the mandatory biodiversity net gain measures in the Bill that we discussed earlier. These measures require that habitats for wildlife must be left in a measurably better state than they were pre development.
The Government are committed to the measures introduced in the Environment Bill, on which the Ministry for Housing, Communities and Local Government has worked closely with Defra to develop. As set out in the Planning for the Future consultation, we want the reformed planning system to play a proactive role in promoting environmental recovery and long-term sustainability. The proposed planning reforms will reinforce the implementation of these measures, including the biodiversity duty, as opposed to contradicting them. Through our planning reforms, we intend to maintain protections for areas of high environmental value and place a stronger emphasis on opportunities for environmental improvement. As I said earlier, I am meeting with the Housing Secretary shortly to discuss this and many other issues further.
Moving to Amendment 210A, from the noble Earl, Lord Caithness, I agree very much with the intention of his amendment, which seeks to ensure that future farming practices support nature recovery. He is right to make the argument that he has, in particular, to re-emphasise the point that other noble Lords have made, that there is no inherent contradiction between farming and nature. There are good farms and bad farms, but good, sustainable farming is inherently nature friendly. That is the kind of agriculture and land use that we need to encourage and must see much more of. The existing Clause 95 places a broad duty on all public authorities to conserve and enhance biodiversity. Where an authority has influence over farming, or has farms on its land, it will already need to consider what it can do to ensure that biodiversity is supported.
On Amendment 205B, tabled by the noble Baroness, Lady Jones of Whitchurch, in strengthening the biodiversity duty we are ensuring that public authorities take more effective action to support nature’s recovery. But it is important that authorities have the flexibility to balance the competing priorities. Public authorities have a huge range of functions that are vital to society and which must continue to be delivered, so requiring them to prioritise biodiversity over all other considerations could cause unintended consequences for the provision of public services. For example, if authorities were obliged to prioritise biodiversity over adult social care, it is unlikely that this would be accepted by the community. So we are increasing the strength of the biodiversity duty, but in a way that allows them to balance other priorities.
I agree very much with the intent behind Amendments 228 and 232, tabled by the noble Lord, Lord Teverson. Of course we want these things to work. We are not just going through the motions; we expect these new systems to deliver for nature. The local nature partnerships that he mentioned must, and will, play a key role in preparing and delivering local nature recovery networks. This has already been demonstrated through the five recently completed pilots. The Cornwall and Isles of Scilly partnership, which I have mentioned before, and which was chaired by the noble Lord himself, was a fantastic example of this, helping to co-create a prototype local nature recovery strategy with Cornwall Council. There are also many other local groups that have key roles to play in preparing these strategies. We intend to use regulations made under Clause 98 to ensure that all important local partners will be fully involved, so I am pleased to confirm that the intent of the noble Lord’s amendment can already be delivered by the Bill as drafted.
Regarding Amendment 232, I assure noble Lords that the Government are committed to fully funding the preparation of these strategies. New duties and incentives from the Government will play a key role in boosting activity, but the public, private and voluntary sectors must all play their part in delivering these jointly owned local strategies for nature recovery.
I thank the noble Lord, Lord Lucas, for tabling Amendment 229A. Regulations made under Clause 98 will have an important role to play in the successful implementation of local nature recovery strategies. The scope for the regulations is broad, specifying the procedure that the responsible authority must follow in preparing, publishing, reviewing and republishing their strategy. To inform the approach that the Government will take to these regulations, we are committed to launching a consultation over the summer.
Regarding Amendment 262, tabled by the noble Lord, Lord Teverson, I again share his motivation to build on the hugely important work of local nature partnerships, but I do not think that a formal consultation is necessarily the best approach. Local nature partnerships were set up in 2011 to be locally led, non-statutory organisations, focusing on the environmental priorities in their areas.
On Amendment 230, from the noble Lord, Lord Lucas, the Government’s intention is that delivery of local nature recovery strategies will be driven by a combination of duties and incentives that balance the need for urgent action with the rights of landowners and land managers. Local drainage boards and the Environment Agency will both have important roles to play in delivering local nature recovery strategies, given how crucial water is for so many aspects of nature. As public authorities, they and a great many other organisations will be required by Clause 95 to have regard to relevant local nature recovery strategies when exercising their functions.
Finally, the Government welcome Amendment 293 from the noble Baroness, Lady Young of Old Scone, and agree with the intent to achieve a more strategic approach to land use. At Second Reading, the noble Baroness said:
“Land needs to be multifunctional and to deliver a whole range of public and private benefits”.—[Official Report, 7/6/21; col. 1215.]
That is exactly what the Government are aiming to achieve as we confront climate and biodiversity challenges, while maintaining food production and sustainable development.
The Government do not underestimate the scale of the challenge. Existing clauses on local nature recovery strategies will provide England-wide coverage of locally produced spatial strategies for nature and nature-based solutions. Regulations and guidance will ensure that they work together coherently. The noble Baroness has set the challenge, which the Government must meet through the implementation of the Bill and our wider reforms, to deliver a genuinely strategic approach to land-use change across the UK.
I thank all noble Lords for their thoughtful contributions to this debate, and, for now, I ask them not to press their amendments.
The Deputy Chairman of Committees (Baroness Fookes) (Con)
My Lords, the noble Earl, Lord Caithness, has requested to speak after the Minister.
The Earl of Caithness (Con)
My Lords, I am grateful for the reply my noble friend the Minister gave, but I am slightly perturbed by his answer to the amendment of the noble Baroness, Lady Young of Old Scone, to which I put my name. He said we need a lot more Knepps. Yes, but where will they go?
He went on to say that the Government have a strategic approach. I do not think they have. My noble friend is battling with the Ministry of Housing, Communities and Local Government on many issues at the moment, and he will be battling with the Treasury and the Department for Transport. This goes across government. The Government might think they have a strategy but, without a strategy that we can all look at, it will be dependent on the budget and annual spending plans of each department. It will be a horrible annual battle.
I hope my noble friend will reconsider this between now and another stage, because the more I have listened to on the Bill and the more I have talked to farmers, the more I am absolutely convinced that the only sensible way forward is for us to have a strategy to which we can have our input and support the Government. That will make life clearer and better for everybody in future. Not only will it protect our environment much better but it will help produce the food that we want. The way we are going, we will have to import a whole lot more food than we do at the moment; that will be the downside of the Bill.
Lord Goldsmith of Richmond Park (Con)
I think we are agreed. In the past, I have heard the noble Earl, Lord Caithness, agree—as most people in this Committee would agree—that we need to do all we can to reverse biodiversity loss. We cannot do that without the measures that I have described today and that we have been debating over the last seven days in Committee. We can bank that as something we all agree on and put it to one side.
We also know that we need to produce food, and that we probably have to produce more food. The only answer to that is to maximise the use of land that is not highly productive, to increase productivity on land that is productive and to ensure that the farming we do does not undercut or undermine the work we are doing on areas that are not farmed. That means reconciling farming with nature. No one is pretending it is easy, but that is what we have to do. If we do not do that, we fail with nature, food security and pretty much all the ambitions we set ourselves. It is difficult, but that is what we are trying to do. Things such as ELM and the other mechanisms that exist will, I hope, create the incentives we need to take us down that route.
Baroness Jones of Whitchurch (Lab)
My Lords, I thank everyone who has contributed to what has been a very wide-ranging and excellent debate. I thought the noble Baroness, Lady Parminter, made an excellent argument about the need for local authorities to act in accordance with their local nature recovery strategy so that it becomes centre stage. As she says, it is not sufficient for them to simply “have regard to” that strategy. I listened to what the Minister said in response. He will forgive our ongoing scepticism about “have regard to” but, quite frankly, in the past it has been an excuse for inaction. That is our concern about the way that it is worded at the moment. We still feel that there needs to be something more specific that ties down that relationship for the future.
The noble Baroness quite rightly points out that iconic nature reserves such as Knepp would be protected under the terms of her amendment, and I agree with that. That theme was echoed by a number of noble Lords. Again, we have to look at the practical applications of some of these phrases to see what can be achieved by them. I think the noble Lord said that Knepp is just one example, and we seem to have been talking an awful lot about it, but the truth is—and I think the Minister said this—we want a lot of Knepps, particularly on land which is not suitable for high-productive farming. Let us not just concentrate on the one. We want a strategy that will deliver for all the potential Knepps in the future and they all need to have the protection of their local nature recovery strategy to help with that.
I also agree with the noble Baroness, Lady Jones, that local government is under enormous pressure at the moment and needs the resources to carry out its responsibility properly. Again, the Minister said that these initiatives would be properly resourced. I have to say that that has not been our experience up until now. It has been all too tempting in the past for more and more policies to be put on the shoulders of local government without it having the necessary resources to carry out new responsibilities, which it would like to do properly but just does not have the resources. I think there is still a dichotomy there.
The noble Lord, Lord Lucas, made the excellent point about the diversity of representation on the boards and the need for agencies to collaborate in delivering the strategy. I thought that point was well made. He also mentioned the Cuckmere estuary. As he probably knows, the Seven Sisters site is about—I think this week—to be signed over to the South Downs National Park, which will include the Cuckmere estate. I hope very much that, if there have been failures in the past, under the new regime it will become an exemplar of nature recovery and biodiversity as a new and exciting country park.
The noble Lord, Lord Teverson, with his customary authority, set out why it is crucial that local nature recovery strategies should be drawn up with the local nature recovery networks. He quite rightly probed the Minister on whether we can justify the partnerships and the networks. Are we clear what they are there for and the contribution that they will really make and, again, are we sure that they will have proper resourcing? I think those questions were well put.
The noble Earl, Lord Caithness, quite rightly points us to the work of the Nature Friendly Farming Network —again, I have had some dealings with it and have been impressed with the work it is doing—and the Game & Wildlife Conservation Trust. He is right that Natural England should work with these initiatives.
I very much welcome Amendment 293 in the name of my noble friend Lady Young of Old Scone. This is a hugely important amendment. As she says, we need a framework to manage the multiple pressures on land. She listed all the Government’s initiatives which pile up on top of what is a very scarce and precious resource. As she says, it could end up with random and incoherent priorities sitting side by side. The noble Earl, Lord Devon, said that all these pressures on our green and pleasant land are more than we can really deliver and, at some point, someone is going to have to make some strategic choices about all of this.
I listened to the Minister’s response to this, and he seemed to welcome what my noble friend was saying in her amendment. However, it needs more than warm words: it needs a commitment for that strategy to be laid down, the timescales to be met and Parliament to have a say in it—so it is quite a big ask if we are going to do it properly. I do not know my noble friend’s plan for the amendment, but there was a lot of support for it around the Chamber, so I hope that she will consider pursuing that in some way.
I listened carefully to what the Minister said in answer to my question about planning and the battle between biodiversity and planners. I am not sure that he answered my question on how a developer’s green footprint will be assessed under the new regime. I understand that he is discussing this further with the Housing Minister, and, obviously, that is a welcome step, but we need to clarify this important point in the Bill now—so I hope that his discussions can come to fruition very quickly.
I will quote again from the Environmental Audit Committee because I am not sure that the Minister responded to it. It recommended that:
“The Government should explain how and when it will move to embedding environmental net gain in the planning system, with clear actions and milestones”.
It also recommended that:
“The Government should strengthen local authority capacity and enforcement mechanisms to deliver biodiversity net gain”.
Those structural things—clear actions, clear milestones and how these things will be measured—are missing from what the Minister is saying at the moment.
We are left with a concern that has not been answered —he will know that it has been raised not just here but elsewhere—and we need an answer to this, somehow. We need to bring this to fruition in some shape or form. Obviously, we will not do that this evening. I welcome further discussions on this with the Minister, as I am sure other noble Lords will, but, in the meantime, I beg leave to withdraw the amendment.
The Deputy Chairman of Committees (Baroness Fookes) (Con)
We now come to the group beginning with Amendment 212. Anyone wishing to press this or anything else in this group to a Division must make that clear in debate.
Amendment 212
Lord Oates
“Power to conserve biodiversity
After section 40 of the Natural Environment and Rural Communities Act 2006 insert—“40ZA Power to conserve biodiversity(1) This section applies to—(a) a local authority in England other than a parish council, and(b) a local planning authority in England.(2) For the purposes of complying with the general biodiversity objective under section 40(1) and (1A), a public authority to which this section applies may designate a site within the area of the authority as a site at risk of biodiversity loss.(3) Proposals under this section must be submitted for consideration to a public meeting in the area to which they relate prior to a site being designated.(4) An authority exercising powers under this section must have regard to any views concerning the proposals expressed by—(a) those attending the meeting;(b) those who own or otherwise possess land in the proposed site at risk of biodiversity loss;(c) any other party with a relevant interest in the site.(5) An authority exercising its power under this section may publish a plan to protect the biodiversity of a designated site, which may include—(a) an assessment of the impact that any plan, project or other activity may have on the biodiversity of the protected site,(b) its assessment of activities that should not take place on the site where it reasonably believes those activities would be significantly detrimental to biodiversity on the site, and(c) any plan, project or other activity that the authority considers is necessary for the purposes of protecting biodiversity on the site.(6) An authority exercising its power to designate land under this section may enter into a “conservation covenant agreement” with a landowner as provided for in Part 7 of the Environment Act 2021.s(7) An authority to which this section applies has a right of entry to land designated as a site of importance for local biodiversity, where it has reasonable cause to believe that local biodiversity is at significant risk.””Member’s explanatory statement
The purpose of this amendment is to provide local authorities with powers to assist them in discharging their duties under Clause 95 “General duty to conserve and enhance biodiversity”.
Lord Oates (LD) [V]
My Lords, I speak to Amendment 212 in my name and those of my noble friend Lord Teverson and the noble Baroness, Lady Bennett of Manor Castle. I am grateful to both of them for their support. I will also speak to Amendments 270 to 273 and Amendment 275, also in my name, which relate to conservation covenant agreements in Part 7 of the Bill and flow from the principal Amendment 212.
There is much in the Bill about the power of the Secretary of State to impose duties on local councils and other public authorities, but there is next to nothing about the power of these authorities to discharge their duties. This is as apparent in Part 6, “Nature and Biodiversity”, as it is elsewhere, where councils have many duties in respect of maintaining local biodiversity but precious few powers to do so.
My amendments seek to address this. Amendment 212 aims to tackle an issue that arises where landowners are destroying biodiversity on their sites, sometimes because they are frustrated at failing to get planning consent and think it may be easier to achieve if the site is a barren wasteland, devoid of nature. At present, local authorities have very little power to stop them and, while I understand that there are powers under the Wildlife and Countryside Act that allow the police to act in certain circumstances, they themselves face resource constraints and, for understandable reasons, often have more pressing priorities. Amendment 212 would allow a local authority to designate land as a
“site at risk of biodiversity loss”,
with consequent powers to enter land to inspect what is taking place and to enter into a conservation covenant agreement with the landowner.
The subsequent Amendments 270 to 273, and Amendment 275, which relate to the conservation covenant agreements, seek to automatically list local authorities as the default responsible bodies able to enter into such agreements. At present, only the Secretary of State is listed as a responsible body, although he or she has the power to designate a local authority, or indeed any other body, as a responsible body.
There are two reasons for my amendments requiring local authorities by default to be deemed responsible bodies. The first is that the conservation covenant agreement is in many ways analogous to the listed building heritage partnership agreements under Section 60 of the Enterprise and Regulatory Reform Act 2013. These are within the remit of the local authority. It seems to me that, in the case of the conservation covenant agreements, the default responsible body should be the local authority and another body should be designated only if it can manifestly be demonstrated to be the more appropriate body. Local authorities are on the front line in the fight against biodiversity loss. They have knowledge of the actual situations on the ground in the locality that the Secretary of State can never hope to have, however omniscient they may convince themselves they are.
Secondly, Amendment 212 provides that the local authority may enter into a conservation covenant agreement in relation to a site that it has designated as at risk of biodiversity loss, in order to agree with a landowner a schedule of works that is permissible to maintain a site without damaging its biodiversity. Unless Part 7 is amended, the local authority might find that it does not have that power because, by act of omission or commission, the Secretary of State has not designated it a responsible body.
I was prompted to bring all these amendments to the Committee as a result of a particular situation which has arisen in my home borough of Kingston-upon-Thames, relating to the Seething Wells filter beds site, which may be familiar to the Minister. It is a former Thames Water facility next to the river in Surbiton, which has significance not only for nature and biodiversity but for history, having played a key role in helping Dr John Snow prove cholera was water-borne. The site is designated as metropolitan open land and has been disused since its decommission in 1992. It subsequently developed into a haven for plant and animal life, including birds, bats and grass snakes. It is an important site for biodiversity in the borough. Following a number of failed planning applications over many years on the site, the current owners embarked on the widescale destruction of vegetation, destroying these precious habitats and leaving the site barren. The council has largely had its hands tied. It had no power to stop the owners doing what they were doing, or even to enter the site to find out exactly what was taking place. As a consequence, the biodiversity of this important local site has been lost. But nature could return to the site if the council was given the powers to intervene that would be provided by my amendments.
In the context of this site, I pay tribute to the appropriately named councillor Liz Green, whose passion to protect this site inspired this amendment, and to the Seething Wells Action Group, for all its committed campaigning. The situation at Seething Wells is a tragedy in itself, but it is evident from local authorities across the country that many face similar challenges and similarly lack the powers to tackle them.
These amendments would ensure that a local authority could designate land as a site of biodiversity loss, and would provide a local authority with the power to enter such land
“where it has reasonable cause to believe that local biodiversity is at significant risk.”
They would allow councils to publish a plan to protect the biodiversity of a designated site and to enter into a conservation covenant agreement with the owner of the land. As such, these amendments would provide important tools in the armoury of local authorities as they seek to protect land that is a precious biodiversity resource for their local communities.
I hope that, in his response, the Minister will recognise the important role that local authorities can play in protecting local biodiversity if they are empowered to do so. I also hope that he can give me some assurance that he is prepared to consider how the Government can incorporate the intent of these amendments into the Bill. To that end, I would welcome the opportunity to discuss this matter with him in the coming weeks, so that we can ensure that, in future, local councils across the country have the powers to prevent the sort of heartbreaking biodiversity destruction that has occurred on the Seething Wells filter beds site and ensure that such things never happen again. I beg to move.
Lord Teverson (LD)
My Lords, I shall be pretty brief on this, because both my amendments should really have been in the previous group, although one of them is particularly important.
First, I take just one minute to reassure the noble Baroness, Lady Young of Old Scone. She was concerned that she should not be consumed by vultures, but on the of Isles of Scilly, we have an Egyptian vulture visiting this year. There may not be an opportunity next year, so there are big decisions. That vulture joins Wally the Walrus, who, unfortunately, has come some 2,000 miles too far south on an ice floe and is trying to land his big weight—up to a tonne—on local vessels. I say to the Minister that we have some introductions that were not necessarily there before the last ice age, but there we are.
I shall be very brief. My first amendment says that local authorities must have a duty to implement nature recovery networks. That comes back to the theme of the previous group, and I shall not go through that again. My second amendment, which is also slightly out of place here, is key. It comes back to environmental land management schemes, which will be the big game-changers in practice in the countryside over the next decade. Why? Because they have real resources behind them—£2.5 billion per annum, potentially—to put into nature recovery. Their whole ethos and guiding hand is public goods being paid for by public money, and their concentration is to be on biodiversity—not all of it is for nature recovery but a large proportion of it is.
We have the three tiers, as they were called: the sustainable farm initiative, the nature recovery area and the whole landscape side. I am stating the totally blindingly obvious, but you cannot have that going off in one direction and nature recovery networks going off in another. One is primarily produced by local government, AONBs or national parks; the other is produced and decided by Defra centrally. The good news is that they are both within the “Defra family”, but I have little hope that, without real concentration, one part of Defra will be talking to the Natural England side, on the other, on nature recovery network implementation. My challenge is this: how are we going to get those two key elements to work together, rather than working in conflict?
The only other thing I would say is that I was delighted to put my name to my noble friend Lord Oates’s amendment; he has expounded those virtues tremendously. I will not follow on from that, except to entirely endorse his arguments.
The Deputy Speaker (Baroness Fookes) (Con)
I understand that the noble Lord, Lord Blencathra, has withdrawn, so I call the noble Baroness, Lady Jones of Moulsecoomb.
Baroness Jones of Moulsecoomb (GP)
My Lords, I will be brief as well because I would like to get home to see extra time.
As in the previous group, these amendments would strengthen the Bill by giving it powers and mechanisms to make it work well. Amendment 212 would give new powers to local authorities to protect and enhance nature in the planning process. I know that the Green Party’s 450 or so councillors sitting on over 140 local authorities, along with thousands of other environmentally aware councillors from other political parties, would be able to achieve a huge amount with these new powers—in particular, the ability to prohibit inappropriate activities that would be detrimental to biodiversity. At the moment, there is little more that can be done other than protesting and campaigning against this sort of environmental destruction, which of course we all do extremely well but too often it is, sadly, completely useless. So this would be an important tool with which to defend communities and nature.
Amendment 231A would do the important work of tying the Bill in with the recently passed Agriculture Act. Both Bills have similar objectives—to protect and enhance the environment—but somehow there are no explicit links. This amendment would provide them. The two Acts could well end up pursuing parallel objectives rather than delivering joint action. Something that I think was missing from the Agriculture Act was that large-scale landscape-level planning that goes beyond individual farms and parcels of land. Amendment 231A would definitely help to ameliorate that by tying individual landholdings into the larger scheme of the nature recovery strategy. I hope the Minister will address that point specifically.
Baroness Young of Old Scone (Lab) [V]
My Lords, I shall speak to Amendment 231A in the name of the noble Lord, Lord Teverson. I am slightly concerned that the noble Lord appeared to suggest that I go to the Isles of Scilly, fling myself in front of a moving vehicle and then lie on a hillside to allow a vulture to eat me. That would be delightful but to be honest it would be a bit premature, so I am not sure I am going to take up his offer. There will be other vultures—other vultures are available, as I think the phrase goes.
The noble Lord’s amendment would require any environmental land management scheme project to comply with the local nature recovery strategy. This is absolutely the joining-up of agricultural and nature purposes of land use, which is vital, as the noble Lord, Lord Teverson, laid out. The fact that the noble Lord has felt the need for agriculture and biodiversity uses to be joined up reinforces the need for an overarching land-use framework, as I outlined in my previous amendment, combining not only agricultural and nature purposes but development and a variety of others, such as climate change mitigation and floods—multiple purposes that a limited land supply has to achieve. However, if I cannot have a land-use framework from the Minister, I would be very grateful if he would give way to the noble Lord, Lord Teverson and let us at least have agriculture and nature joined up.
Baroness Boycott (CB)
I support Amendment 212 and all amendments that join ELMS and nature recovery plans. Farming, as we know, is responsible for practically all biodiversity loss, and all the intensive farming that is going on has to cease.
My worry about ELMS was reflected at the Groundswell conference, where this year there were nearly 5,000 farmers. There were many talks going on and many people were extremely concerned about when ELMS would come in, how it was going to work and how they were going to be paid. As far as I know, only one of the pilot schemes has actually started to deliver any sums of money. A sum of £47 per hectare for better soil was being proposed through the Landworkers’ Alliance, at which most farmers turned round and said: “That’s simply not enough. How can I refigure my entire future to make my land biodiverse and nature-friendly when I don’t know what kind of support I’m going to have?” It seems crucial for us to have the sort of joined-up thinking that is in the amendment. I urge the Government to say when there will be clarity for farmers about what kind of support they can have so that they can shift their farming mechanisms to protect biodiversity.
On the question of local authorities, what is happening a lot in our area is that people are creating driveways and putting up barns in the middle of the countryside. These then become stalking horses—a cattle barn then needs a house for someone to live beside it. We have one of these very close to where we live. We have all been objecting because there is a problem with the stream: there is runoff. They are proposing to have 300 cows in there but they do not need it as there are brownfield sites and disused farms around that could be used instead. Everyone seems to be powerless and not have a leg to stand on. This is an important amendment and I hope the Government will be able to incorporate it when the Bill comes back to us again.
Baroness Hayman of Ullock (Lab)
My Lords, this debate very much follows on from the previous one, so I will be brief. Amendment 212 in the name of the noble Lord, Lord Oates, looks to give local authorities and planning authorities new powers, so they can meaningfully fulfil their duty to conserve and enhance biodiversity, by allowing them to designate sites at risk of biodiversity loss. Local authorities need to consider and integrate biodiversity conservation throughout their policies and strategies—for example, waste, transport and education. Cross-departmental consultation, ecological expertise and the support of a wide range of partners will be crucial in achieving this.
The noble Lord, Lord Teverson, spoke in his introduction to his Amendment 227A of the importance of co-operation between public authorities. We support the aims of this amendment, but we have some concerns the proposed powers could risk duplicating those provided by local nature recovery strategies, which have the potential to allow authorities to build and maintain ecologically coherent networks of nature recovery sites. It may be that these aims are better fulfilled by Amendment 209 to Clause 95, which we have discussed and was tabled by the noble Baroness, Lady Parminter.
We support Amendment 231A, also in the name of the noble Lord, Lord Teverson, on ELMS and local nature recovery strategies. The noble Baroness, Lady Boycott, has just clearly expressed her concerns, which reflect those of many others, about the introduction of ELMS and the lack of clarity at the moment. Amendment 231A would tie projects funded by ELMS to the local nature recovery strategy. This is important, because this alignment would ensure that gains for nature from ELMS would complement, and further gains from other policies, such as biodiversity net gain, would be co-ordinated by, the appropriate local nature recovery strategy. That would help local nature recovery strategies to fulfil their critical directional role to build and maintain ecologically coherent networks of nature recovery sites.
The Secretary of State has previously expressed his belief that ELMS projects should align with the local nature recovery strategies. Earlier, my noble friend Lady Jones of Whitchurch, mentioned the work of the Environmental Audit Select Committee. In January, the Secretary of State said he wants ELMS
“to be conscious of and dovetail with local nature recovery strategies”,
so there is that support in Government. But as the noble Baroness, Lady Jones of Moulsecoomb, and my noble friend Lady Young of Old Scone have said, we need to consider the ambitions of the Agriculture Act and this Bill, and make sure they are joined-up, saying the same thing and working together. We therefore hope the Government will consider taking this amendment forward. I look forward to the Minister’s response.
Baroness Bloomfield of Hinton Waldrist (Con)
My Lords, it is clear that we cannot finish the whole group this evening, so I beg to move that the debate on these amendments is adjourned.
Lord Goldsmith of Richmond Park (Con)
I am happy to go on. I only have a short speech, beginning with Amendment 212 from the noble Lord, Lord Oates. I start by reiterating that local authorities are vital in protecting biodiversity and improving nature at a local level, so I sympathise with the noble Lord’s intention. However, powers already exist that could be used to conserve and enhance biodiversity on specific sites.
National planning policy already directs local plans to identify and map areas of substantive nature conservation value. They should include policies that secure the protection of these areas from harm or loss and help to enhance them and their connection to wider ecological networks. Local authorities can create local nature reserves under Section 21 of the National Parks and Access to the Countryside Act 1949, designating these sites based on local importance for wildlife. In addition, the Bill already allows for a local authority to enter into a conservation covenant. I therefore assure the noble Lord that powers suggested by this amendment are already covered elsewhere.
I turn to Amendments 270, 273 and 275, also in the name of the noble Lord, Lord Oates. A principle underpinning the Government’s proposal for conservation covenants, which we will be debating in more detail later, is their voluntary nature. There is no compulsion on anyone or any organisation to enter into them. It is important that this principle extends to organisations that may become responsible bodies. That is because the role of responsible bodies, which will be integral to the delivery of covenants, requires a good level of resourcing and expertise to be performed properly. Organisations must decide for themselves if they have the capacity to perform the function of a responsible body. It is also possible that some local authorities may not wish to become designated as responsible bodies. If local authorities choose to apply, like other organisations they will be assessed against our published suitable criteria and designated where they are considered suitable to fulfil the role.
Lord Oates (LD)
My Lords, I am grateful for the support from my noble friend Lord Teverson, and from the noble Baronesses, Lady Jones of Moulsecoomb and Lady Boycott. The noble Baroness, Lady Hayman of Ullock, will not be surprised to know that I discussed my amendments with my noble friend Lady Parminter. The amendments do different things: the one does not replace the other. But I would be happy to talk with the Labour Front Bench more about this in future.
I was pleased when the Minister indicated that he wanted to finish this group tonight, because it would have seemed wrong to take it on to another day—but I would have been less pleased if I had known how peremptory his response would be, and how little it answered the questions that are given rise to in this amendment. He said that local authorities had the power to act already. I would be grateful if he would write to me and tell me under what powers Kingston Council could have entered the site to investigate what was going on and to stop the destruction of vegetation. If those powers exist, I would be grateful if he would share them with me. He said that local authorities already have the power under the Bill to enter into conservation covenant agreements—but that is only if they are so designated by the Secretary of State.
So I cannot hide my disappointment in his response. This is a very important issue: it affects local authorities up and down the country. It is not is not about the creation of strategies, it is about the ability to act to enforce and prevent the destruction of biodiversity. So I very much hope that the Minister will agree to meet and discuss this further. If the Government are not willing to move on this, I will want to come back to this, as it is such a critical issue. For now, I beg leave to withdraw the amendment.