Environment Bill

Consideration of Commons amendments
Tuesday 9th November 2021 Lords Chamber

Commons Reasons and Amendments

15:35

Motion A

Moved by

[Lord Goldsmith of Richmond Park]

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

15:45

The OEP may pursue cases for enforcement action only if it considers that the conduct in question would constitute a “serious” failure to comply with environmental law. Clause 23(7) states that the OEP must have regard, among other things,

“to the particular importance of prioritising cases that it considers have or may have national implications”.

While the OEP will have discretion to interpret these criteria, setting out its approach in its enforcement policy, it follows in the Government’s view that cases which only have a local concern—for example, the majority of individual planning and environmental permitting decisions—are unlikely to have sufficiently broad or widespread impact to be prioritised. The OEP could pursue such cases if it considers them indicative of a broader or more systemic issue or failure, or if especially serious harm has resulted, or may result, from the potential failure. The OEP, for example, could consider this in relation to the destruction of a nationally important population of a rare and protected species, but this should not be the norm.

However, we have listened to and carefully considered the views and concerns raised in this House and in the other place and agree that it is important that these protections are balanced with the need to prevent or mitigate serious environmental harm. As such, I am pleased to be able to propose an amendment in lieu which strikes this important balance. In introducing it to your Lordships, I must repeat my earlier acknowledgement that ministerial Statements in Hansard could be drawn on by the courts as a legitimate aid to statutory interpretation in the future, as I put a number of points firmly on the record.

This amendment will ensure that a high bar is still set for the granting of remedies where third parties may be affected. This is set out in Condition A of our amendment. However, critically, it will also provide that, even where Condition A is not met, if the court is satisfied that it is necessary to prevent or mitigate serious damage to the natural environment or human health, and there is an exceptional public interest reason to do so, the court will be able to grant a remedy. This is set out in Condition B, which provides the court with discretion to undertake a real and meaningful, albeit weighted, balancing exercise. This means that there would no longer be a blanket prohibition on the granting of remedies where third parties are likely to suffer substantial hardship or prejudice.

In the rare cases where third parties may be affected, however, I would like to illustrate how this provision could operate with an example. Potentially, on an environmental review, the court could rule that an environmental permit had been granted to a factory operator with such inadequate conditions that it was unlawful. If the court concluded that Condition A was not met, because substantial hardship to the factory operator would be likely to result from the quashing of the permit, it would then turn to Condition B. If in the absence of a quashing order it is likely that the factory would continue to release harmful air pollutants with serious impacts for the health of the local population, the court may conclude that it is necessary to grant a remedy to prevent or mitigate serious damage to the natural environment or human health.

At this point the court would need to weigh the public interest in preventing serious harm against the public interest in preventing substantial hardship occurring to a third party. To grant a remedy, the court would need to be satisfied that the public interest in preventing this serious harm substantially outweighed the interest in preventing hardship, thereby constituting an “exceptional public interest reason” to grant the remedy. In cases such as this, where severe damage to the environment or people’s health could occur or continue if no remedy was granted, the court may choose to grant a remedy.

Given the types of serious cases the OEP is likely to bring, we consider that this test strikes the appropriate balance. I have every faith that it will do so, and that this amendment will therefore serve to be a valuable addition to the OEP’s enforcement framework as a whole. I hope that this amendment serves to provide reassurance that the Government are thoroughly committed to protecting against environmental harms through the OEP’s enforcement functions. On this basis, I hope that noble Lords can support this amendment so that we can proceed to finalise the Bill, establish the OEP in law and enable it to begin its important work.

Finally, on Amendment 45B, tabled by the noble Duke, the Duke of Wellington, and Amendments 45C and 45D, tabled by Rebecca Pow in the other place, I recognise at the outset the enormous efforts of the noble Duke, the Duke of Wellington, the noble Lord, Lord Oates, the noble Baroness, Lady Quin, and my noble friend Lady Altmann in their work on this issue.

I am pleased that the Government’s amendment in lieu, which I announced on 26 October, was agreed yesterday in the other place. The frequency with which sewage is discharged from storm overflows into our waters is of course absolutely unacceptable. I want to be clear with the House that there have been some factually incorrect claims online that the Government are somehow through this Bill legalising sewage dumping; that is not only not true but very clearly the opposite of the truth. Claims to that effect are factually inaccurate and undermine the integrity of this debate.

I am pleased to confirm that our new amendment says that water companies

“must secure a progressive reduction in the adverse impact of discharges”

from their storm overflows. The word “must” means that we are placing a direct legal duty upon water companies to do this. Water companies face a choice: reduce sewage discharges or face the consequences of strong enforcement action.

Turning to the specific amendment from the noble Duke, the Duke of Wellington, we have redrafted it to ensure both proper legal effect and more effective implementation, and we have gone further in places. My counterpart in the other House has had many discussions with the noble Duke in recent days and weeks, and I would like to reiterate some of the points that she has made for the benefit of this House.

First, this amendment is a clear duty on water companies to deliver improvements, which the noble Duke pressed for throughout the passage of the Bill. Indeed, our amendment contains a stronger duty than in his initial wording; it will ensure that they have to take the necessary steps relative to the size of the problem.

We have taken the “progressive” reduction wording directly from the Lords’ amendment. “Progressive” means that water companies must continue to take action even after the next price review period and even after they have achieved a significant reduction and tackled high-priority sites, as required in the draft policy statement to the regulator, Ofwat.

We have also gone further than the noble Duke’s amendment in other areas. First, our amendment clearly specifies that “adverse impacts” includes impacts both on the environment and on public health. I know the noble Duke was particularly interested in enforcement, and rightly so. Our version goes further because it will dock in with the existing enforcement regime in the Water Industry Act. This means that Ofwat can issue enforcement notices to direct specific actions, or fine companies up to 10% of their annual turnover, which could run to many millions of pounds. The Government will also be able to take enforcement action and we will not hesitate to do so if we do not see sufficient progress. Furthermore, the OEP will be able to take enforcement action against the Environment Agency, Ofwat or the Government should it feel that any of us are not adequately discharging our duties.

I extend my thanks very sincerely again to the noble Duke, the Duke of Wellington, for championing the cause of our rivers, and I hope that he will now be able to support our amendment today. More broadly, I acknowledge the exceptional work on the Bill by all noble Lords, whose scrutiny and advice has led to it being immensely strengthened, with new, world-leading measures added to it. This is a testament to the cross-party working, dedication and expertise of noble Lords in protecting our natural environment. Noble Lords have improved our Bill immeasurably, and I hope that, like me, they want to see it pass into law today, as the world is watching from Glasgow. I beg to move.

Motion A1 (as an amendment to Motion A)

Moved by

[Lord Krebs]

Leave out from first “do” to end and insert “insist on its disagreement with the Commons in their Amendments 31A and 31B on which the Commons have insisted for their Reason 31D, do not insist on its Amendment 31C in lieu to which the Commons have disagreed for the same Reason, and do propose Amendment 31E in lieu—

31E: Clause 24, page 14, line 30, leave out subsections (1) and (2) and insert—
“(1) The OEP has complete discretion in the carrying out of its functions and in preparing and publishing its budget (but subject to this section).
(2) The Secretary of State may issue guidance to the OEP on the matters listed in section 22(6), but this should not include matters relating to the enforcement of environmental law against the Secretary of State for Environment, Food and Rural Affairs.
(2A) The OEP must have regard to the guidance in preparing its enforcement policy, unless there are material considerations that indicate otherwise.””

[Lord Krebs (CB)]

My Lords, I thank the Secretary of State, the Minister and the Bill team for the very helpful discussions that I have had with them throughout, and particularly during the last week. In spite of this, here I am with a further amendment, and I feel slightly embarrassed to be pressing yet again on the matter of the independence of the OEP. However, the strength of opinion across this House was clear at the first stage of ping-pong, when my amendment passed with a majority of 51.

The Government clearly have an umbilical attachment to the guidance powers in Clause 22, and my amendment makes a major concession in that it does not seek to remove the guidance power. I expect that there will be some noble Lords who believe that this concedes too much. However, the proposed new subsection (2) in the amendment would introduce a specific constraint on the Secretary of State in issuing guidance, namely that guidance cannot be issued on

“matters relating to the enforcement of environmental law against the Secretary of State”.

The aim of this subsection is to prevent the Secretary of State having a conflict of interest. Without it, he or she could, in effect, mark their own homework.

The proposed subsections (1) and (2A) of my amendment state that, in spite of any guidance, the OEP

“has complete discretion in the carrying out of its functions”,

and that, while it

“must have regard to the guidance”,

the OEP does not have to follow it if

“there are material considerations that indicate otherwise.”

These subsections are designed to ensure that the OEP has the operational independence that we all want, in spite of the guidance power.

I turn to the Minister’s opening speech and quote back two key sentences. The first is:

“It would also be inappropriate for the Secretary of State to issue guidance on specific matters relating to the enforcement of environmental law against the Secretary of State for Defra, given that there would be a conflict of interest.”


The second is:

“the OEP would be expected to have regard to any guidance issued, but it retains the ability and discretion to make its own decisions and is not bound to act in accordance with the guidance where it has clear reasons not to do so.”

Although the wording is slightly different from my amendment, the implications of the points made in the Minister’s speech are more or less identical. I hope that, later in this debate, the Minister will confirm that my interpretation is indeed correct. The only piece that is left out is the OEP setting its own budget, but there are some other safeguards in other parts of the Bill.

I consider it a great pity that the Government were not prepared to accept my amendment, as the Minister’s speech implies that its intent has indeed been accepted. However, as the Minister stated at the start of his speech, ministerial statements in Hansard could be used by the courts in future as an aid to statutory interpretation. I look to the lawyers, because it is well above my pay grade to judge the value of that statement and, therefore, whether what we have heard is a sufficiently robust protection for the OEP’s independence.

The Minister also made three other important points that respond to earlier concerns expressed about the guidance power. First, the guidance power could not be used to preclude the OEP from investigating a broad category of cases. The example I used in an earlier debate was new nuclear power stations. Secondly, it is up to the OEP to decide whether cases have national implications. For instance, a case that has specific and local implications, such as the destruction of a unique habitat, could also be of national significance. Thirdly, the Secretary of State will not issue guidance to the OEP before the initial setup and before the OEP has had a chance to develop its own enforcement policy.

I thank the Minister for his speech. I believe that we have converged on a way forward that protects the operational independence of the OEP. The solution may not be perfect, but it gives me some reassurance on this absolutely central plank of the Bill. I beg to move.

[Lord Cameron of Dillington (CB)]

My Lords, it appears that there has been some sort of rapprochement—albeit, I suspect, reluctant. On the one hand are us, from all sides of the House of Lords, who wish to see a strong and independent OEP; on the other side is the current Defra team, which still, I get the impression, wishes to guide its activities as far as is politically possible. It would appear that we are gradually getting closer together. Sadly, however, we are not seeing a total volte-face by the Government, as we have over sewage and CSOs—or, for that matter, on breaches of parliamentary rules on lobbying.

Unfortunately, the independence of the OEP, a body that has yet to exist, is a concept too esoteric for the public to even know about, let alone to get hot under the collar about. If they knew about it, bearing in mind the Government’s behaviour in recent weeks, I should have thought that they would be concerned that future Secretaries of State could be exercising guidance over this body, whose primary function, let us face it, is to hold the Government, its Ministers and their quangos to account.

As my noble friend Lord Krebs said, his Motion A1 is very much in line with what my good friend Rebecca Pow, the Minister in the other place, has already said on the Floor of that House, as echoed by the Minister in this House today. It would have been good to get it on the face of the Bill to make the sentiment more certain and, above all, more durable, because that is really what matters. Bearing in mind that we are unlikely to get another environment Bill for some decades, I for one would have preferred us to move beyond just the commitments of this excellent team of Ministers and to a properly constituted, independent OEP that will stand the test of time. However, although I strongly support the amendment in the name of my noble friend Lord Krebs, I recognise that the rapprochement we have achieved is now probably as far as we are going to get.

16:00

[Baroness Ritchie of Downpatrick (Lab)]

My Lords, I support the amendment in the name of the noble Lord, Lord Krebs. While I agree with the noble Lord, Lord Cameron of Dillington, that we have achieved some rapprochement, I was looking for total independence for the office for environmental protection and the consequences of that for Northern Ireland. While welcoming the progress, I am therefore still disappointed that the Government have rejected attempts to strengthen the independence of the office for environmental protection in law. I felt that needed to be placed on the face of the Bill.

I have carefully read what the Minister in the other place, Rebecca Pow, said yesterday on this important matter and note that she put some helpful statements on the record, including to confirm that the Government have no intention of issuing guidance before the OEP is up and running and has developed its own enforcement policy. She also recognised the conflict of interest inherent in this guidance power involving the implementation of environmental law by the Defra Secretary of State.

While these are welcome statements, my fear is that they could be forgotten or ignored by future Secretaries of State. I repeat the point made in several debates on the importance of future-proofing. I recall that I had amendments about the need for the independence of the OEP in Northern Ireland in Committee, on Report and during the last ping-pong. My great wish remains for such assurances to be written into the Bill, but sadly—like the noble Lord, Lord Cameron of Dillington —I believe we have achieved as much as we possibly can. Regardless of the outcome of this debate, I will write to the DAERA Minister in Northern Ireland to ask for similar assurances to be provided.

I ask the Minister here to tell the House whether he is confident that the Bill and this OEP will be totally accountable, and what discussions he has had with the DAERA Minister in Northern Ireland regarding the accountability of the OEP. We have a five-party Executive in Northern Ireland, and it is not always easy to achieve consensus on a wide range of issues. I would welcome answers to those questions.

[Lord Anderson of Ipswich (CB)]

My Lords, having pestered the Minister since well before Second Reading for meaningful judicial remedies on environmental review, I will speak to Motion B and Commons Amendments 33C and 33D, which I believe are the product of negotiations between a variety of departments —some of them powerfully opposed to what they see as constraints on development.

While I thank the Minister and his colleagues at Defra for shouldering that task, I sense that the imprint of the Treasury and the Department for Levelling Up, Housing & Communities is visible on the end result. The good news is that the courts are now to be trusted with a discretion over whether to grant a remedy, even if substantial hardship or prejudice may be caused to developers or other third parties. The bad news is that this discretion is, as the Minister has said, weighted: weighted in favour of the developer. Uniquely in our law, the court will be barred—save for an exceptional public interest reason—from granting a remedy in such cases, even if it is satisfied that a remedy is necessary to prevent serious damage to the environment or to public health. The Minister’s example of the harmfully polluting factory makes just that point.

The noble and learned Lord, Lord Mackay, spoke in Committee of an underlying feeling that environmental law is to be

“a grade below some other laws so that, although you fail to comply with it, you can still be all right”.—[Official Report, 30/6/21; col. 815.]

I regret that, while this amendment does achieve a limited upgrade for environmental law, a good deal of truth remains in his comment.

It was tempting—but would in the end have been futile—to fight on so, making the best of it, I end with two positive remarks. First, I draw attention to the helpful indication that the Minister has just given about what is intended by the obscure phrase “exceptional public interest reason”. By his own account, such a reason will exist whenever the public interest in preventing serious harm to the environment or to human health substantially outweighs the interest in preventing hardship to a third party. Less benign interpretations of that phrase might have been imagined, so I am grateful to him and his counterpart in the other place, Rebecca Pow, for their clarity and their express acknowledgment that their statements may in future be drawn on by the courts as a legitimate aid to statutory interpretation under Pepper v Hart.

Secondly, I take comfort in the fact that even after what we must assume to be the passage of the Judicial Review and Courts Bill, the full panoply of court remedies will remain available on judicial review—if not at the suit of the OEP, which will be allowed to bring judicial review proceedings only in urgent cases, then at least to other claimants with a sufficient interest. In that context, I note the Government’s view, expressed from the Dispatch Box on 30 June, that

“the OEP’s complaints and enforcement functions would not affect the rights of other persons to bring legal challenges against public authorities by way of a judicial review”.—[Official Report, 30/6/21; col. 823.]

In those circumstances, with profound thanks to the noble Lords from all parties and none who have signed and supported various amendments on this theme, and to the Minister and the Bill team, I offer a qualified but sincere welcome to Amendments 33C and 33D.

[Baroness Jones of Whitchurch (Lab)]

My Lords, I will speak specifically on Motions A, A1, B and D. My noble friend Lady Quin will then return to Motion C later in the debate. I thank the noble Lords, Lord Krebs and Lord Anderson, for their perseverance and commitment to achieving proper OEP independence and enforcement powers. As we have said repeatedly, these measures are necessary to ensure that the environmental standards set out in this Bill, and indeed elsewhere, are protected for the longer term. I am also grateful to the Minister and the Bill team for listening and engaging on the issues that we have raised.

However, what we have before us today is not ideal, and we believe that the Government could have gone further to amend the Bill to give the assurances for which noble Lords across this House have repeatedly pressed. Throughout the process, we have supported the noble Lord, Lord Krebs, in his determination to protect the independence of the OEP. This has been a fundamental issue and we continue to support Motion Al, which he has tabled today. We believe, as his amendment sets out, that the OEP should have complete discretion to carry out its functions free from the interference of government.

In this context, there have been a number of areas of detail which have been helpfully clarified by the Government in the Commons and, again, in this Chamber by the Minister today. For example, despite the Government’s insistence on the right to issue guidance to the OEP, we welcome the recognition that this should be limited to the areas of OEP enforcement policy listed in Clause 22. Quite rightly, it has been made clear that the Secretary of State cannot issue guidance on enforcement issues against the Defra Secretary of State, as this would be a clear conflict of interest. It has also been helpfully clarified that it would be within the scope of the OEP’s remit to investigate broad categories of individual cases that might have a common theme. This includes cases that have a discrete local impact but national implications.

We also reiterate our support for the proposal that Parliament should scrutinise the draft guidance before it is issued. All this goes some way to providing reassurance on an issue that we nevertheless believe continues to represent a flaw in the overall construct of the legislation. Can the Minister also assure us that before the Government publish any draft guidance, they will consult the OEP? Can he also assure us that the framework which will be agreed with the OEP will also set out its commitment to a five-year indicative budget? These are issues which the Minister will know are outstanding from earlier debate.

On the issue of enforcement, we welcome the tabling of the Government’s amendments to Clause 37(8), which address the concerns that the threshold for achieving a successful judicial review was insurmountable and anyway gave precedence to the interests of third-party polluters rather than those of the environment and the community. The amendment recognises that, on occasions, granting a remedy to address behaviour or damage will be necessary even if it may cause substantial hardship to the rights of a third party.

We have argued from the beginning that the courts should have the discretion to weigh all these factors equally in the balance. The Government’s amendments do not achieve that objective, but nevertheless we support the noble Lord, Lord Anderson, in the view that this compromise wording is a step forward and the best that we will get at this stage of the process. No doubt the exact meaning of “the exceptional public interest” test will be played out in the courts in years to come, and we very much hope that the widest possible interpretation of it will become the norm.

The Minister will not be surprised to hear that we still have reservations about the final wording in the Bill on these issues, but nevertheless, we accept that progress has been made, and hope that he can reassure us on the remaining outstanding questions about the OEP’s independence.

[The Duke of Wellington (CB)]

My Lords, I speak to Motion C, introduced by the Minister.

Members of both Houses of Parliament and the public have become increasingly aware during the passage of this Bill that our rivers, of which we are so proud, are being despoiled every day by sewage discharges, both legal and illegal. The BBC and national newspapers have carried so many disturbing stories and even Ministers have learned to what extent our aquatic environment is being continuously mistreated.

I thank the Government for tabling in the other place the amendment in lieu, which the House of Commons passed last night by a large majority. I also thank Rebecca Pow, the Environment Minister, for discussing the amendment with me last Thursday and I thank several Ministers and the Secretary of State for various meetings which we have had in recent weeks.

Since this House passed the cross-party amendment on 26 October, which placed

“a duty on sewerage undertakers to take all reasonable steps to ensure untreated sewage is not discharged”,

there has been considerable public support for this wording. Even Water UK, the industry body which represents the water companies, put out a statement the following day that MPs should back the Lords amendment to strengthen the Environment Bill. I was surprised by this as I had assumed that the water companies would oppose my amendment, but they want the Government to go further. Specifically, they want the Government to instruct regulators—I assume that means Ofwat—to authorise investment in sewers. From the Minister’s words when moving the Commons amendment, it appears that the Government will be giving suitable directions to Ofwat. The government amendment requires by law that the water companies secure a progressive reduction in the adverse impacts of discharges. I particularly welcome the reference to “public health” in the new amendment.

16:15

Part of the problem at the moment is that there are very few prosecutions. My original amendment would have required the Secretary of State and the regulators to exercise their powers of enforcement. The Government have chosen to reword this. Now, the duty on the water companies is enforceable by the Secretary of State and others, and I was pleased to hear the Minister in the other place, and indeed the noble Lord, Lord Goldsmith, state that Ofwat and the Government will not hesitate to take enforcement action and are able to fine water companies up to 10% of their annual turnover. In addition, the office for environmental protection will be able to take enforcement action against the Government, the Environment Agency or Ofwat if it feels they are not adequately discharging their duties.

I cannot disguise my concern that the new government amendment is weaker in certain respects than my own, but the Minister’s statement last night and the noble Lord’s from the Dispatch Box this afternoon have greatly strengthened the amendment. It is interesting that both in the other place and here the Ministers have specifically said that they wish to put a number of points on the record in the knowledge that ministerial statements in Hansard could be drawn on by the courts as a legitimate aid to statutory interpretation in future.

I regret that I cannot support Motion C1 in the name of the noble Lord, Lord Adonis. Although it is worded very similarly to my amendment from last week, the Government’s amendment takes on so many of my points. I hope the Minister will acknowledge that they have been pushed to this point by strong opinions in both Houses of Parliament and in the country. In fact, it is surprising that Governments of both parties have allowed the pollution of our rivers to continue for so long and to such a degree.

As a result of improvements to this Bill, Parliament and the public will be better informed about sewage discharges, and the Government will have the power and, we hope, the will to take action. It will be a measure of the success of this part of the Bill if these discharges are dramatically reduced in the near future. Ministers are now required to report to Parliament on progress, and I know that we will want to hold Ministers to account on this matter.

Pollution of our rivers by sewage is a national embarrassment; I hope that these clauses in this Environment Bill will bring it to an end. I conclude with this thought: our children and grandchildren will surely be surprised that we allowed this revolting state of affairs to continue for as long as it did.

[Baroness Jones of Moulsecoomb (GP)]

My Lords, my coughing is not Covid, in case anybody is concerned.

I am so sad and disappointed that we have got to this place: we are under pressure, because of the primacy of the other place, to pass a Bill that is not as good as the one we amended. It seems that the Government do not understand what they have done in stripping out some of the safeguards we have put in. This will come to haunt MPs, because people will not forget the campaign to stop the sewage discharges into our rivers. Some people were also concerned about the office for environmental protection. This will not be forgotten.

I know the Minister said that this was not true, but I would argue that the Government have legitimised the sewage discharges that will be happening from now on. There is no timetable and there are no targets. Quite honestly, it seems that the Government do not understand the pressure that is coming from the grass roots—from dog walkers, fishing enthusiasts, Surfers Against Sewage and wild swimmers, who have seen this and really care about it. We have returned to the 1970s version of ourselves as the “dirty man of Europe”.

I hope that the Government will now admit the deliberate confusion that they created about the cost of stopping any further discharges. The figure—was it £60 billion or £600 billion?—that they put forward was absolutely outrageous; of course, they quickly withdrew it when people started to check. The Government could loan the money to the water companies to put in the infrastructure that we need to prevent discharges in a relatively short space of time. However, that would mean, of course, that those water companies could not pay dividends to investors, senior people and shareholders until the debt was paid off. If we had a tough regulatory system, the scandal would never have been able to escalate in the way that it has. It has been a failure of the Government, Ofwat and the Environment Agency and, unfortunately, the Environment Bill does nothing to deal with our relatively toothless system of enforcement.

I had hoped that we would be able to pressure the Government even more. Quite honestly, if any votes are put this afternoon—I cannot give up—I will vote for them, because the Government have still not achieved what we hoped would be achieved and what the general public want us to achieve: a cleaner Britain. I am hoping that the Government will at some point come forward with more safeguards, but at the moment I am not holding my breath and, as I said, I will vote for any amendments that are pressed.

[Baroness McIntosh of Pickering (Con)]

My Lords, I take this opportunity to congratulate the noble Duke, the Duke of Wellington, on bringing us this far and I add my congratulations to my noble friend the Minister.

I want to ask two small questions. My noble friend said that he would look for the water companies to achieve a progressive reduction in the discharge of sewage over a period and admitted that this would go beyond one price review. As we are so far into the current price review, what will the level of expenditure be within this review, and does he admit that the majority of expenditure will probably fall in the next price review?

He is aware of my concern about the delay in introducing the regulations under Schedule 3 of the water Act 2020. Does he not share my concern that we will still potentially be front-loading raw sewage as surface water will be allowed to mix with the overflow from the combined sewers, pumping more raw sewage into the rivers? I am deeply unhappy that we have not yet fulfilled one of the outstanding requests of the Michael Pitt report from 2007, when surface water flooding first became an issue, and even after the awful floods that we have had since. We have not managed to achieve an ending to the automatic right to connect and, until these regulations are introduced, we will not do so.

Is my noble friend able to put a timetable on when these regulations will finally come into place, so that we can have a pincer movement on the raw sewage going upstream and downstream, as addressed by the amendments before us this afternoon?

[Lord Adonis (Lab)]

My Lords, I will speak to Motion C1. I know enough about military strategy to know that where a Duke of Wellington does not lead a forward manoeuvre, it may be unwise to try to advance when he is not leading. So I am very mindful of the views of the House, and other noble Lords will speak before I decide whether to press Motion C1.

The point he made, which I think still holds, is that, although there has been movement on the part of the Government, in two key respects—the scope of the duty on water companies and the timescale in which it is intended to be met and in which we are intended to see improvements—the amendment that the Government have moved is unsatisfactory. I think there is general recognition in the House that we are not talking about a minor matter. We are talking about 400,000 discharges of raw sewage into Britain’s rivers in the last year alone. All the evidence is that the number is increasing, not reducing. We are not moving in the right direction; we are moving in the wrong direction and indeed, because of the impact of Brexit and the supply chain problems and all of that, and the shortage of relevant chemicals, the Environment Agency has issued formal advice exempting water undertakings from having to meet their prior conditions.

The noble Duke’s first amendment referred to taking “all reasonable steps”, which would imply a short timescale, and my amendment refers to

“a period specified by the Secretary of State”

in which defined objectives are to be met. My question to the Minister, which I think will be of great importance to the House since there is no reference to any timescale in his amendment, is: in what timescale does he envisage that there will be significant reductions in sewage discharges?

The second issue relates to scope. The noble Duke’s amendment put a direct duty on water companies to improve the performance of sewerage systems to get at the heart of the problem—inadequate sewage treatment facilities to reduce discharges of raw sewage. Now, the Government’s amendment refers to reducing

“the adverse impact of discharges”,

which is an indirect duty and does not require at all, necessarily—but certainly not in a defined timescale—significant improvements in the performance of sewerage systems. I ask the Minister why the Government are so focused on the indirect impacts—which we accept are important, and the noble Duke referred to that—rather than a direct duty on water companies to improve the performance of their sewerage systems?

A final point of some significance is: who can enforce this duty? Because, as everyone has accepted, without enforcement the duty will probably go unfulfilled. Philip Dunne—to whom we pay tribute and who has done great work in the other place on this issue—in his speech yesterday referred to his continuing concerns about enforcement, particularly in the context of a cut in the Environment Agency’s staffing and budget of two-thirds in the last 10 years, which has dramatically reduced its capacity to enforce or indeed even to inspect—and of course, unless you have inspected, you cannot enforce.

The noble Duke’s amendments would have given any individual or body corporate the power to enforce or to bring enforcement action or legal action because of the non-fulfilment by a water company of the duty. I think in particular of local authorities. Of course, it is local authorities that best know what is going on in their area and have the professional staff who are able to make assessments. Under the Government’s amendment, only the Secretary of State and defined state institutions can hold water companies to account for the enforcement of their duties. That is a very significant limitation on the noble Duke’s amendment.

So my third question to the Minister is: why are the Government not prepared to allow local authorities and non-state bodies, many of which are highly expert in this area, to bring proceedings against water companies that are not fulfilling the duty that is now set out in the Government’s amendment?

To me, these are three very significant issues: timescale, the scope of the duty and enforcement. In all three respects, the Government’s amendment is wanting at the moment. It does not lead me to have any expectation that the noble Duke’s aspirations, which we all share, will actually be fulfilled, because the timescale for meeting these objectives could be inordinately long. I look forward to hearing the contributions of other noble Lords, and in particular of the Minister at the end of the debate, before I decide whether, even if the noble Duke himself is retiring from the field, others of us might feel that it is in the public interest that we should attempt to advance none the less.

16:30

[Lord Chidgey (LD)]

My Lords, in response to the public outcry at the Government’s opposition to the noble Duke’s original amendments, the Government promised us that they would deliver the wishes of the public in a new amendment, in keeping with the intentions of the Duke. That is something that we really should bear in mind today when we consider the intricacies of the back-and-forth of the various comments that have been made.

It would have been better if, yesterday evening, our MPs had stood firm and insisted on clarity and action by Ministers. That is what is needed to stop our rivers and seas being treated like an open sewer by the water companies. It is the case that the public must never again be faced with an annual figure of 400,000 releases of raw sewage into our rivers and seas.

In that regard, I have three quick points to make. Will the Government confirm that they will, in due course, do three things? First, will they work with the Environment Agency to immediately start setting tougher permits for sewage works and CSOs, and on the monitoring, inspection and enforcement regimes, by way of ministerial direction? Secondly, will they tell Ofwat that it has a central role to play in cleaning up sewage using existing regulations, and will they make Ofwat accountable to Parliament on an annual basis for progress in reducing sewage discharges? Finally, will they strengthen current schemes to generate clear investment plans, backed by resources, to begin eliminating the worst and most damaging sewage pollution?

I think we all understand that the public will be watching, particularly in the towns and villages represented by those MPs who supported the Government so robustly in the other place last night.

[Baroness Neville-Rolfe (Con)]

Although this is not strictly relevant, I congratulate my noble friend the Minister on the important international agreement on rainforest protection in recent days. I am so pleased.

I am content with the government amendments as outlined by my noble friend the Minister, especially the improved parliamentary scrutiny that is provided for on guidance. I do not agree with the noble Baroness, Lady Jones of Moulsecoomb, or indeed with the proposals of the noble Lord, Lord Adonis, which we have not really been able to debate properly. I think we are on the way to a cleaner Britain through these proposals, so I am extremely grateful for them.

However, I have a question for clarification on the new untreated-sewage provisions, which I do not think has been covered by what has already been described. How will we know what is happening in terms of the success of progressive improvements in sewage disposal into our rivers and the sea? What are the monitoring arrangements? These are important to all of us and to the water companies, on which we rely for our water and for investment, whatever the agreed timetable on the new proposals.

[Baroness Quin (Lab)]

My Lords, I shall also speak to Motion C. I begin by giving my renewed congratulations and thanks to the noble Duke, the Duke of Wellington, for all his efforts, which have not only caused the Government to concede in various ways but highlighted the issue to the wider public, so that many of our citizens who were previously unaware of the extent of sewage discharges are now very much engaged and determined to see that these large-scale problems are addressed. It is a pleasure to have been involved in the cross-party work with the noble Duke, the noble Baroness, Lady Altmann, and the noble Lord, Lord Oates. I wish the Government had included all the elements of the noble Duke’s amendment, but I recognise some of the commitments that have been included, and which represent a considerable improvement.

I will make three brief points which I think have not been fully covered so far. The first point is about cost. There is a lot of controversy about the costs of the clean-up, and the Government’s estimates of the costs have been challenged by many people as being far too large. I hope that the Government, in determining the costs as they move forward, will consult widely—not just with the water companies but with all stakeholders and communities—particularly looking at the claims of some people who believe that much more can be done quickly and relatively more cheaply than the Government claim.

For example, the Thames tideway scheme is claimed to be able to eliminate 90% of storm overflows at a cost of £20 to £25 on London water bills a year, which is not a huge cost, given some of the figures that have been bandied around. Many individuals and environmental groups think that a substantial reduction of spills can be achieved in the short term without, for example, having to replace wholescale networks of Victorian sewers. We need to look at what can be achieved with a fairly modest increase in water bills.

Secondly, I still believe that we need improved take-up of technology by the water companies. For example, when looking at the figures on smart meters and comparing what is happening in this country with the United States, we can see the introduction of technology in a much more widespread way in the United States.

Thirdly, we need a holistic approach to particular rivers and coastal waters. It makes no sense to upgrade—as sometimes happens—one treatment works on a river but not another one just a few kilometres downstream, which means that the environment for aquatic life improves only for the distance between the two and there are no proper, fundamental effects. Within an overall approach, there must also be priorities. I believe that the chalk streams and the SSSI areas—particularly sensitive coastal areas and places where there is an effect on health—should still be very high priorities.

I share some of the frustrations expressed by the noble Baroness, Lady Jones of Moulsecoomb, particularly when she talked about European battles of the past. I remember campaigning, a long time ago, and feeling ashamed that our own country was so far behind in, for example, the clean-up of waters around our beaches and coastal areas. It is very depressing that we need to once again express shame for what is happening in our rivers and coastal waters today.

In conclusion, I welcome the progress that has been made during the course of the Bill’s passage, but the issue remains a crucial one. I hope that the Government will find themselves under close scrutiny from all parties, across both Houses, to ensure that they deliver on their promises, and that we will see an end to the appalling amount of sewage discharges which have occurred in recent months and years.

[Baroness Altmann (Con)]

My Lords, on Motion C, I too congratulate my noble friend the Duke of Wellington on all his amendments throughout the passage of the Bill to which I have added my name. It has been a pleasure to work co-operatively across the House, including with the noble Baroness, Lady Quin, and the noble Lord, Lord Oates.

Indeed, noble Lords’ scrutiny has achieved many important improvements. I therefore thank our excellent Ministers—my honourable friend Rebecca Pow in the other place and my noble friend the Minister—my noble friend Lady Bloomfield, and the entire Bill team for their engagement, hard work and willingness to be persuaded to finally accept the need to place duties on the water companies. I also commend the work of my honourable friend Philip Dunne in the other place, who did so much to move this forward.

At last, the Bill places a direct legal duty on the water companies. The government amendment seems to me to produce what we and my noble friend the Duke of Wellington were aiming to achieve with the most recent amendment. There is considerable public concern that the Environment Agency is not using its existing powers, has relied too much on self-reporting and has consistently tolerated repeated illegal discharges which damage our waterways and public health. I am grateful to the Government that they have now specified both the environmental and human health aspects.

It will also, as other noble Lords have said, be important to monitor and oversee sewage discharges far more rigorously and to track and reduce such unacceptable discharges so that companies do not rely on not being caught as the most cost-effective way to proceed. I have sympathy with the frustrations of the noble Lord, Lord Adonis, and the noble Baroness, Lady Bennett, but I believe that, although in an ideal world we would not want to start from here, we are not dealing with the situation that we would all wish to see. After years of neglect and companies having behaved so egregiously, I do not believe that this can be addressed instantly. Therefore, it will take time to undo the neglect. I believe that the Government must and will take the necessary actions, but of course we will see over time.

Currently, we have two excellent Ministers who are committed to the aims of the Bill, for which I am most grateful. I also briefly congratulate the noble Lords, Lord Krebs and Lord Anderson, on the pressure they have put on to improve the independence of the OEP. Overall, I believe that this House has achieved a significant amount. We have pushed the Government as far as we possibly can, and I hope that we will now accept the government Motions and be rightly proud of this landmark Bill.

[Baroness Butler-Sloss (CB)]

My Lords, I have rightly stayed silent up to now, having been content with listening, as I have done throughout. I think noble Lords are hugely to be congratulated for encouraging and indeed pushing the Government into a much more favourable position which I think, as the noble Baroness has just said, we ought to accept. I remain particularly concerned about one thing: the discharge of sewage into rivers and chalk streams. How on earth will the Government really see that this is properly monitored? Because if it is not monitored, it is a waste of time.

[Lord Cormack (Con)]

Very briefly, I was very keen that all the amendments in your Lordships’ House, when they went down to the other place a couple of weeks ago, should be accepted, but we are where we are and it is a good illustration of a degree of co-operation between the two Houses. I do wish that the other place would not look on us as competition, or adversaries, but rather as a complementary Chamber very much influenced by those with real knowledge and experience, as has been marvellously illustrated this afternoon by the speeches of the noble Lords, Lord Krebs and Lord Anderson of Ipswich, and the noble Duke, the Duke of Wellington.

Led by our Cross-Benchers, we have achieved a considerable degree of improvement to a Bill that started out as a somewhat flawed flagship. I think now we can take a certain quiet pride. It is not perfect; it would have been better had more of our amendments been accepted and had those before us not been doctored a little, but we must not be churlish. However, I do hope that the other place will come to regard your Lordships’ House as not a competitor or an adversary but a complementary Chamber that can add real value. If one compares the depth of the debate in your Lordships’ House with what happened rather briefly in another place, we can be gently satisfied and quietly proud of what this House has achieved.

It would be churlish to sit down without saying to my noble friend Lord Goldsmith of Richmond Park that we appreciate what he has done. However, in future Bills it would be a good idea if Ministers in your Lordships’ House were given a little more latitude to be responsive at the Dispatch Box—a little more authority, because they deserve it, and my noble friend Lord Goldsmith of Richmond Park has given a lifetime of service to the causes embraced in the Bill. This is a satisfactory afternoon and it would be spoiled by any Division.

16:45

[Baroness Parminter (LD)]

My Lords, I echo the comments of the noble Lord, Lord Cormack, with regard to the Minister and his team’s unfailing co-operation and ambition for the Bill, which is the most important Bill on the environment that we have seen in this country for at least the last 30 years. When it came to us at Second Reading, all of us welcomed it but said that it needed to go a lot further. It would be churlish not to reflect on the fact that it has gone somewhat further, if not as far as most of us—perhaps including the Minister—hoped we might be able to achieve.

On the three final hills on which we have chosen in this House to fight today, we are in the position of having to accept that we are where we are, given the majority of the Government on the other side. On the amendment in the name of the noble Lord, Lord Anderson—he has indeed been a champion redoubtable—on pushing for remedies for the OEP, that is an incredibly important issue and it is of deep regret that it will not go into the Bill. However, I hope, like I am sure other Members around this Chamber, that the assurances that the Minister has given today can bear fruit should there be—as I am sure there will—instances in the future in the courts as these issues are challenged.

On the independence of the OEP, on which the noble Lord, Lord Krebs, led so skilfully on behalf of this House, he is right to say that the Government seem to have an umbilical attachment to not wishing the OEP to have the independence that absolutely all in this House agree that it should. It is of deep regret that that has not made its way into the Bill. However, I think all of us in this House have confidence in the current holders of the OEP, and we hope that they will use the discretion given by Rebecca Pow in the other place so that they are not bound to the guidance if there are good reasons for not taking it forward. I hope that they will make full use of those powers and challenge the Government should they so feel the need.

Personally, where I am most concerned that the Government still have that guidance power to contain the independence of the OEP is on the issue of planning, which the noble Lord, Lord Krebs, mentioned. The Government still retain the ability to perhaps constrain the OEP from taking enforcement measures on planning applications, which may appear local and discrete but have nationally significant biodiversity implications. Given the fate of the biodiversity in our country at this time, we know just how important that may be.

Finally, on the issue of sewage, we on these Benches—particularly my noble friend Lord Oates, who has worked so closely with other colleagues from other Benches—thank the noble Duke, the Duke of Wellington, for the campaign that he has taken forward, and indeed Philip Dunne, who I see is with us this afternoon. It is good to be able to say to them that we in this House thank them both for their campaigning to bring this appalling issue, which is really important for both the environment and human health, to the attention of the Government and the public more broadly. On behalf of all of us, I thank both of them for doing that.

As I say, we have probably pushed the Government as far as they are prepared to go on this issue. However, in having made the general public so aware of what is at stake, the Government can be under no illusion that, while we have done our job here today and in preceding weeks, if they do not listen, act and take the necessary steps to stop these appalling sewage discharges, the public will notice, and it will not just be the environment that pays the price in the future. The Government will pay the price at the next general election.

[Baroness Hayman of Ullock (Lab)]

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

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

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

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

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

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

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

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

[Lord Goldsmith of Richmond Park (Con)]

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

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

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

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

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

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

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

17:00

A number of noble Lords mentioned cost and the noble Baronesses, Lady Hayman and Lady Jones, mentioned figures. The £600 billion figure—I say at the outset that no one pretends it is a scientific figure; a huge range has been described, from £150 billion to £600 billion, which is partly a reflection of the fact that we do not know—is the cost not of dealing with the problem in the manner we are describing and discussing in this House but of eliminating all storm overflows. I do not think that is what anyone is pushing for, as elimination of storm overflows would also remove, for example, the use of sustainable drainage systems, reed systems and the like. That figure is not made up. It may be wrong—I will not pretend that we know for sure it is right—but it is not a figure that has been plucked out of thin air. It was set out by the Storm Overflows Taskforce in November. As I said, I do not think anyone anticipates spending anything like £600 billion to eliminate storm overflows. Our job will be to eliminate the harm from storm overflows; that is the basis on which we are continuing.

The noble Baroness, Lady Quin, mentioned the Thames tideway project. The cost of that is around £5 billion. That is for one river—albeit a big river—and £5 billion for one solution in one area strikes me as a very large sum of money, so it is not completely out of sync with the figures we have discussed in relation to what the cost would be for the whole country.

I hope I will not ruin her credibility by saying so, but I count the noble Baroness, Lady Jones of Moulsecoomb, as a friend and someone who I think has instincts that are absolutely right. She has been campaigning for many years on the environment in a very effective and positive way, so I say this with genuine respect, but I think she is wrong that we are heading backwards in any respect at all. There is an argument—it is one she has made—that the Bill does not go far enough, and we have discussed the issue many times. If it becomes a law, the Bill in its current form represents a big step forward. The protections we will have for our waterways, rivers and ocean will be greater than at any point in our history as a consequence of the Bill. Again, there can be argument about whether the laws have been sufficiently strengthened, but the idea that we are going backwards in any sense is just not objectively true.

The noble Duke, the Duke of Wellington—and I extend my comments to the noble Baroness, Lady Altmann—asked for acknowledgement by me that this amendment is a reflection of and testament to extraordinarily effective campaigning by both them and Philip Dunne, who is sitting over there. I really appreciate the pressure that they have applied because, as they know, decisions are made by the whole of government and pressure on one department enables that department to win arguments with other departments. I sincerely acknowledge the beneficial impact of the noble Duke’s very effective campaigning. On the back of that clear success, I hope noble Lords will feel able to support these amendments.

As your Lordships’ House will be aware, the Bill requires the Government to prepare and publish a plan to reduce storm overflows by September 2022. We have been clear that this plan—not secondary legislation, as would be required by the amendment tabled by the noble Lord, Lord Adonis—is the right place to set out guiding principles to reduce harm from storm overflows, including our level of ambition. The Bill requires us to consult publicly on that plan, and I can announce to the House that we will consult on the draft plan, including the level of ambition over the lifetime of the plan, in spring next year. The plan will help to inform and underpin the wider price review process, including guidance from the Environment Agency, the Water Industry National Environment Programme and the water industry strategic environmental requirements.

The noble Lord, Lord Adonis, and, I think, the noble Baroness, Lady Hayman, and the noble Lord, Lord Chidgey, all talked about the importance of enforcement. Our amendments will dock in with the existing enforcement regime in the Water Industry Act, which means that Ofwat can issue enforcement notices to direct specific actions or, as I said earlier, fine companies up to 10% of their annual turnover, which is a very significant deterrent. However, I acknowledge the point, and I think that the Government across the board would acknowledge that those tools needed to be more effectively used. I do not think there is any argument there; we need a much more muscular approach.

I think it was the noble Baroness, Lady Hayman, who asked about the definition of a “progressive reduction”. We took that term directly from the Lords amendment. “Progressive” means that water companies must continue to take action even after the next price review period and even after they have achieved a significant reduction and tackled high-priority sites, as required in the draft policy statement to the regulator, Ofwat.

In response to the noble and learned Baroness, Lady Butler-Sloss, and my noble friend Lady Neville-Rolfe, I say that the new monitoring requirements added to the Bill include near real-time reporting and attach a new duty to the Environment Agency. The need for very up-to-date and rapid reporting and monitoring is embedded in the amendments we have put forward and, indeed, across the Bill.

[Baroness Neville-Rolfe (Con)]

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

[Lord Goldsmith of Richmond Park (Con)]

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

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

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

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

[Baroness Parminter (LD)]

It was the noble Baroness, Lady Hayman.

[Lord Goldsmith of Richmond Park]

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

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

[Lord Krebs (CB)]

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

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

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

Motion A1 (as an amendment to Motion A) withdrawn.

Motion A agreed.

Motion B

Moved by

[Lord Goldsmith of Richmond Park]

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

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

33D: Schedule 3, page 148, line 21, leave out from “if” to end of line 26 and insert “Condition A or Condition B is met.
(5A) Condition A is that the court is satisfied that granting the remedy would not—
(a) be likely to cause substantial hardship to, or substantially prejudice the rights of, any person other than the authority, or
(b) be detrimental to good administration.
(5B) Condition B is that Condition A is not met but the court is satisfied that—
(a) granting the remedy is necessary in order to prevent or mitigate serious damage to the natural environment or to human health, and
(b) there is an exceptional public interest reason to grant it.”

Motion B agreed.

Motion C

Moved by

[Lord Goldsmith of Richmond Park]

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

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

45D: Clause 139, page 125, line 41, at end insert—
“( ) section (Reduction of adverse impacts of storm overflows) (reduction of adverse impacts of storm overflows);”

Motion C1 (as an amendment to Motion C) not moved.

Motion C agreed.

Motion D

Moved by

[Lord Goldsmith of Richmond Park]

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

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

Motion D agreed.

[The Deputy Speaker (Baroness Garden of Frognal) (LD)]

My Lords, before we move to next business. I think we will have a small pause to allow the Front Bench and other noble Lords to change places.