(1 year, 5 months ago)
Lords ChamberMy Lords, I want to say a few brief words before the Minister replies; this is prompted by the words of the noble Baroness, Lady Bloomfield, in summing up on the last group, and the letter we received today from the noble Baroness, Lady Neville-Rolfe. My noble friends, in moving and speaking to the amendments in their names, and other noble Lords from other Benches, have highlighted the objective of the amendments, which is to get pledges to uphold environmental protections, including those in international instruments.
In the last group, the Minister gave as an example a pledge to uphold human rights. We are shortly to have a Statement on the well-named Illegal Migration Bill, in which the Home Secretary has said that this is 50% likely to breach the European Convention on Human Rights. If that is the standard by which we judge the Government’s intentions in upholding international law, I do not think it is terribly encouraging.
We debated on Monday the definition of a subject area in the light of the letter from the noble Baroness, Lady Bloomfield. I think we have done so again today. Does it mean water quality? Is it the whole of environmental law? Is it the whole of what Defra does? None of us has the foggiest idea. The same puzzle arises over the term “objectives”. The letter from the noble Baroness, Lady Neville-Rolfe, tells us that
“the individual limbs of the power”
in Clause 15
“are also restricted. Subsection (2) is limited such that any replacement legislation must be appropriate and must fulfil same or similar objectives as the retained EU law or assimilated law that it is replacing.”
That is, of course, the wording in the Bill. She goes on:
“This limits the functionality of this limb of the power to essentially adjusting policy to better fit the UK context”.
Apparently, this is
“rather than radically departing or introducing legislation in ways that are controversially different from the existing legislation.”
So now we have “appropriate”, we have the “same or similar objectives”, we have “subject area”, and now we have a pledge to essentially adjust policy to better fit the UK context. I am afraid that this does not assuage concerns because I, for one, do not have the foggiest idea what restraints or constraints there will be on the Government in their adjustment of policy. They are proposing to adjust policy on refugees, with a 50% likelihood of breaching the European Convention on Human Rightsm as well as, in the opinion of these Benches, totally breaching the refugee convention. I am afraid that the Minister has his work cut out to convince us—certainly these Benches—of the Government's good intentions in the environmental area.
My Lords, I seek two things this evening: first, to get through this group without having to write any more billets-doux to noble Lords, because I think they have had quite enough. I will be able to explain, I hope, what we are trying to do to satisfy noble Lords. The other is to leave them, if I did not in the previous group that I responded to, with the absolute certainty that we want to see our environment enhanced, and that existing protections continue to function in a way that works at a time when we are tackling the biggest crisis mankind has faced. My noble friend Lord Lilley raised points about the bureaucracy of trying to do the right thing—that if we want to create a wind farm, the delays in doing that are prohibitive. We need to do things quickly, because there is an urgency about what we are trying to do. There is an urgency in trying to reverse the decline of species, which is more than just a crisis. As Dasgupta said, it is more than just an environmental crisis; it is an economic one as well.
The noble Baroness, Lady Parminter, mentioned my noble friend Lord Randall, who is in hospital. I sent him a message earlier and he replied; he is on the mend and we wish him well.
Amendments 126 and 130 seek to add conditions on and restrictions to the use of the powers contained in the Bill. Amendment 126 would place conditions on UK Ministers or devolved authorities when using the powers under Clause 15 to revoke or replace retained environmental EU law. In particular, this amendment would prevent any provision being made before all the conditions specified in the amendment had been fulfilled. This would add significant delay and negatively impact how we review and reform retained environmental law.
The Government have been clear that we will uphold our environmental protections and our commitments, both domestic and international. The UK is a world leader in environmental protection. In reviewing our retained EU law, we want to ensure that environmental law is fit for purpose and able to drive improved environmental outcomes. We remain committed to our ambitious plans, set out in the net zero strategy, the Environment Act and the Environmental Improvement Plan 2023, which detailed comprehensive action this Government will take to reverse the decline in species abundance by 2030, achieve our net zero goals, and deliver cleaner air and water. This includes creating and restoring at least 500,000 hectares of new wildlife habitats, delivering a clean and plentiful supply of water for people and nature into the future, keeping councils accountable to improve air quality faster, incentivising farmers to adopt nature-friendly practices, and boosting green growth and creating new jobs. This Bill will not alter that.
Defra’s approach is not the same as saying “retain by default”: is that what the Minister said “retain by default” meant when he talked about it last week? I really think we need to be clear.
Our position, as announced by the Secretary of State at the launch of the environmental improvement plan, is that we will retain by default provisions for environmental protection. Where we think there is any element of doubt, we will retain. If it needs to go, it can.
I can give the noble Baroness some examples of areas of law that we will remove. We will remove around half of fisheries rules, as they are no longer relevant. They have either expired or relate to areas that we do not fish—for example, access to the Skagerrak, off Norway, for vessels with the flags of Denmark, Norway and Sweden. We do not need that on our statute book. We will remove the Landfill (Maximum Landfill Amount) Regulations 2011 because they set targets up to 2020, which has happened, for the landfilling of biodegradable waste. They have been achieved.
To remove unnecessary burdens, for example, we will remove some of the CITES-implementing legislation, which lays down specific rules for the design of applications and permits on the protection of wild flora and fauna, including prescriptive rules on the weight of paper that must be used for such documents. Removing these regulations will eliminate unnecessary restrictions and allow the UK to pursue a digital regime. When they were written, there was no digital regime; we can now do that. Commission regulation 644/2005 of 25 April 2005 allows for the removal and non-application of ear tags for bovines kept for cultural and historical purposes—in this context, bullfighting. It is a derogation that we have not used in the UK and will not be using, so we no longer need to have it.
Apologies for intervening again, but is the Minister saying that the Bill retains by default, or just that Defra’s approach is to retain by default? Those are two very different things. The letter we recently had from the noble Baroness, Lady Neville-Rolfe, talked about how
“the internal methodology for identifying such retained EU law was for each department to decide, given their expertise and institutional knowledge”.
It would be useful to understand how that will work within Defra.
Yes, that is Defra’s approach; that is what we are doing in respect of this legislation. Doing that allows us to keep protections in place, provide certainty to businesses and stakeholders, and make reforms tailored to our needs while removing irrelevant and redundant pieces of legislation, such as the ones I recently mentioned.
The noble Baroness, Lady Parminter, and other noble Lords asked about the justification for Clause 15(5). The UK’s high standards were never dependent on our membership of the EU. We can deliver on the promise of Brexit without abandoning our high standards. The powers to revoke or replace will provide the Government with the opportunity to amend retained EU law and will limit those reforms that do not add to the overall regulatory burden. This is about ensuring that we have a regulatory environment that is the right fit for the UK and not for an environment, as I said last week, that goes from the Arctic to the Mediterranean, and which can fit our overall regulatory regime. Our intention is to revoke any retained law that is not fit for purpose and replace it with laws that are more tailored to the UK and reflect our new regulatory freedoms.
The noble Baroness mentioned taxation. This Bill does not affect the raising and collection of taxes; that is a matter for the Finance Act.
On no regression, the Levelling-up and Regeneration Bill is clear that the Government cannot use the powers in that Bill to reduce the overall level of environmental protection, and includes a clause setting out this commitment to non-regression. As stated on the face of the Levelling-up and Regeneration Bill, the Secretary of State may make regulations only if satisfied that they
“will not have the effect of reducing the level of environmental protection provided for by any existing environmental law”.
So any changes to environmental regulation will need to support these goals, as well as our international commitments, including those with the EU.
The noble Baroness, Lady Young, referred to the Bill as somehow weakening our resolve or our ability to deliver on our international commitments. I can be absolutely clear on this: there has never been a more determined effort to deliver for international biodiversity and the international climate, as well as domestically.
If the noble Baroness will allow me: Britain is revered in many of the fora that I have attended, whether COPs or other UN events, for the leadership we have taken on this. We cannot do it internationally unless we do it domestically as well. That is why our 30 by 30 commitment is so important and why we will achieve proper management of our marine protected areas by the end of next year, which will deliver precisely on the 30 by 30 commitment for the marine environment.
The noble Baroness, Lady Parminter, was before the noble Baroness.
Indeed. I do not wish to contradict the Minister, but I am going to. On reading my copy of the Bill, Clause 15(4)(f) states that the burden “may not … impose taxation”. It states that you cannot include new taxation if you are looking to introduce a new piece of legislation. That is pretty clear.
That is because taxation is a matter for the Finance Bill—for the Treasury. This Bill does not relate to that. It is a negative. This does not affect taxation.
Okay, but it goes on to say in Clause 15(10)(a) that the burden includes, among other things, “a financial cost”. A financial cost can be a levy, which is taxation.
Forgive me, I think that is dancing on the head of a pin. Taxation is not a matter for this piece of legislation.
I was going to ask the noble Lord something else, but I support what the noble Baroness, Lady Parminter, said.
It is kind of fruitless if we ping-pong across, with Ministers generally saying that we are right behind current levels of environmental protection, international commitments and all that. I wonder whether we could try a little test case on the habitats regulations, which we have made some changes to already through the Environment Act, and a number of changes to them are already embedded in the levelling-up Bill. Some bits of those regulations are left for which I do not know what the Government’s intentions are. Inevitably, for something such as protected areas and our commitment to 30 by 30, not having a clear view from government as to how the habitats regulations will fare in this review process, which is under way through two separate pieces of legislation already, is a bit of a worry when we have to sort that out before the end of the year.
Perhaps we could use the habs regs as a test case and ask the Minister to map out for us what has been sorted in the Environment Act, what will be sorted if we approve it in the levelling-up Bill and what is going to happen to the remainder of the provisions of the habs regs before they fall off a cliff at the end of this year. That would give us a lot more confidence in some of the assertions—which we absolutely accept the Minister is making in good faith—about not diminishing standards and not welshing on or diminishing our ability to respond to our international obligations.
I totally respect the noble Baroness for her commitment on these issues. I know she would not want legislation that sealed the habitats regulations in aspic for ever, because the environment changes and demands change and Parliament has to reflect that occasionally regulations need amending. We may well want to raise the standards of those regulations.
If I can correct the Minister on that, this retained EU legislation Bill has a hard edge. As of the end of December, if nothing else has been done it does not set it in aspic but sets it eight feet under.
If we maintain it as is, it will not fall at the end of the year. If we want to reform it, it will be in the form of an SI, as before, so noble Lords will have a chance to debate it. The noble Baroness seems to be presupposing that somehow we are just going to allow it to sunset, and we will not.
I will make a bit of progress, if I can. We want to positively—I think this answers the noble Baroness’s point—tailor our legislation to our new status as an independent nation. This is why we do not consider the proposed conditions for such regulations necessary.
Amendment 130 seeks to add a new clause to the Bill relating to environmental standards. This amendment would introduce a new clause requiring Ministers to meet the additional conditions set out within it. It would also specify that, when exercising these powers, the relevant national authority must have regard to the conservation and enhancement of biodiversity, the improvement of water quality, and the protection of people and the environment from hazardous chemicals. I recognise that the noble Baroness, Lady Hayman, may have concerns about the powers within the Bill and the impact their use may have on regulations related to environmental standards. I reassure her that such concerns are unfounded.
A number of noble Lords talked about the water framework directive. I shall relate very quickly an experience I had when I came into government with the Liberal Democrats in the coalition. I visited a river that was feeding into the Wye—a river that is often raised in this House for its condition. I visited a mill-house. Its owners said that they had been there for eight years. They pointed at some farm buildings about half a mile away and said, “When we came here we couldn’t see those farm buildings. Two metres of top soil has been lost in the eight years we have been here.” I asked where it was now and they showed me the millpond round the other side of the house which was full of the delicious red soil that comes from that area. I said, “How could this have happened?” The farmer who had allowed it to happen was receiving money from the basic payment scheme, and probably from the countryside stewardship scheme, but no one had visited, or if they had visited they had not raised this issue. The river authority—or whoever was in charge of the quality of the rivers; it was the Environment Agency at the time—had not raised the issue.
That was 12 years ago. Since then, we have produced measures which would require that farmer, if they wanted to continue to get public money, to have soil conditions that would prevent that kind of erosion, and the management of that river would require much higher standards. The water framework directive, which has some very high standards and high bars which we talked about last time, was being ignored, and one of the great rivers of our country was being ruined.
Let us not pretend that everything was perfect in the past. We have got a long way to go to improve our rivers, and it is the determination of this Government to write a new form of the water framework directive which will continue the high standards that we seek for our rivers.
In his reply, the Minister has several times implied that it was the fault of EU law, but surely it was a problem of UK implementation and enforcement. I know I am a broken record in this respect but I have, at various times, referred to the Thames super sewer. Left to their own devices, the UK Government were not going to stop the discharge, in even minimal rainfall, of raw sewage through 36 combined sewage overflows into the River Thames as it goes through London. It was only infringement proceedings by the European Commission that led to this result. The standards that we have are not the EU’s fault; it is the UK Government and the agencies that have not done their job.
I never said that. I was the Minister who made the sewer that is being put in place happen. I know all about the urban waste water treatment directive, and it is a very good directive indeed. It is cleaning up a lot of rivers and will ensure that we have more investment such as we are seeing in the Thames. There may be cases where there has been poor implementation, and there may be cases where there has been very good European regulation which we want to see retained. There may be areas where we can see an improvement which reflects a local dynamic in our environment.
We cannot talk about this in a binary sense. There is some very good EU law which we want to see continue, there are some areas in which it is no longer necessary, and there are some areas in which with a few tweaks it can be improved. Among the proposed conditions in the amendment is a requirement to publish a statement setting out how such environmental standards have been met. Such conditions are already being met under the Environment Act 2021. The Act has established a robust legal framework to deliver environmental benefits and hold Governments, both now and in the future, to account in delivering them. Crucially, the Act also established the Office for Environmental Protection, an independent body to scrutinise government delivery and progress on environmental ambitions. In addition, we have a statutory duty, through the Environment Act, to report annually to Parliament on progress against the environment improvement plan and to undertake a significant improvement test every five years.
To reiterate the point on REACH, which the noble Baroness, Lady Hayman, raised, we recognise there may be concerns about the future of REACH regulation. That is why we have deliberately built protections into the provisions of the Environment Act. The Secretary of State must publish a statement to explain how any proposal is consistent with the basic aim and scope of REACH. There must be consultation before we can make any changes. We have also excluded more than 20 provisions to protect the fundamental principles of REACH, including the no dating, no market principle, using animal testing only as a last resort, and the public transparency of the system.
Finally, I want to clarify a response made to the noble Baroness, Lady Chapman, the last time I addressed the Committee on the Bill’s removal of interpretive effects. The removal of interpretive effects by the Bill refers to measures in Clauses 3 to 5 which repeal rights, powers and liabilities saved by Section 4 of the European Union (Withdrawal) Act 2018. They abolish the principle of the supremacy of EU law and general principles of EU law as aids to interpretation of the UK statute book. Retained case law is not being sunsetted.
Further detail on interpretive effects was set out by the noble Lord, Lord Callanan, in his letter circulated before the Committee on 6 March. We will shortly publish a list for noble Lords, so they will have plenty of time and opportunity to review the regulations we intend to allow to expire at the end of the year and those we wish to retain.
The Government are committed to upholding the environmental protections. I hope I have reassured noble Lords, and I therefore ask them not to press these amendments.
The Minister speaks for Defra and assures the Committee that the Government are entirely committed to progressing environmental standards and will follow international law. Why is there any problem putting a non-regression clause and an agreement to follow international law in the Bill if that is what the Government plan to do anyway? Further to that, can the Minister assure me 100% that before the next general election there will be no change of direction in the Government, change in Prime Minister or change in ministerial personnel?
I wish I could. I am very content with the current lot, and I hope they continue. I do not really understand the first point that the noble Baroness made. The Bill is quite explicit about where this stands in law. We want a proper regulatory regime underpinned by law; that is why we are having this debate.
My Lords, I thank noble Lords who have participated in the debate. I thank the Minister, who has had the decency again to come and speak to us. Given how critical the environmental laws are to the Bill, it is important that he is here and we are grateful for that, although it may not always seem it. It is therefore disappointing that I can say with a degree of certainty that he has not reassured Members about the issues we are concerned about. In a reasonable way, these two important amendments sought to work with the Bill to allay some of our environmental concerns.
I do not understand how the Minister did not quite understand what the noble Baroness, Lady Bennett of Manor Castle, was saying. We accept what the Government are saying through the Minister, but if they want to deliver the commitments for our environment and, in principle, not regress, why not put it in the Bill? That would give us—and, just as critically, the public—the reassurance that we need.
I do not often quote in the Chamber, but this issue is not going away. On Sunday, David Attenborough starts a series called “Wild Isles”. For five weeks he will encourage the British public to find out what is so special about our country and what they can do to protect it. Sir David said this week:
“Though rich in places Britain as a whole is one of the most nature depleted countries in the world. Never has there been a more important time to invest in our own wildlife—to try and set an example for the rest of the world and restore our once wild isles for future generations.”
For five weeks the British public will get that message and, in the same way as when they heard the plastics message, they will ask what they can do to protect their environment and what their Government are doing. They will see this cuckoo of a Bill, sired by someone who was prepared to trash our environment as well as our economy and, unless it has the significant safeguards we have talked about, it could predate on the environment they care about so much. The Government might choose to ignore us today, but they will not be able to ignore the British public. I withdraw the amendment.
My Lords, I agree with what the noble Lord, Lord Fox, said about the helpfulness of the noble Baroness, Lady McIntosh, in tabling these amendments. It is curious that, in this clause, changes in technology and developments in scientific understanding are allowed to be taken account of but other factors are not. I would have thought, given the Windsor Framework, that we ought to be taking account of developments in the economies of our trading partners and their regulatory developments, because under that framework they are going to have an impact on what we are able to do in the UK and our approach to regulation and divergence. That is becoming increasingly clear, which is why we are seeing questions such as that asked by the noble Lord, Lord Moylan, of the noble Lord, Lord Caine, yesterday at Oral Questions. We do not yet have a sense that the Government are on top of this. It is as if they have done this Bill and then done something somewhere else, and no one has asked about how those two things will overlap.
When I first saw this clause, I thought, “This is a real problem because Ministers are going to get too much power to do things without accountability, rather like the discussions we have had before”, but actually even more questions are raised about the privileging of technology and scientific understanding ahead of anything else. It would be good to understand where that has come from and what Ministers had in mind when they included it in the Bill. Might they come to regret not making clear that this is not an exhaustive list, or something like that, as they have in other clauses? We are not clear what is meant by the phrase
“considers appropriate to take account of”,
so perhaps some examples might be in order.
Amendments 133 and 134, tabled by my noble friend Lady McIntosh of Pickering, relate to the power to make consequential provision in Clause 19. I will also address the intention to oppose Clause 16 that she has tabled, regarding the power to update. I reiterate my intention that Clause 16 should stand part of the Bill. As she has indicated, her intention to oppose it is probably partly probing in nature.
The power to update within the clause, as it says, is intended to enable scientific or technological updates to retained EU law, assimilated law, and legislation made using the powers to restate and the powers to revoke or replace in the Bill. This power is intended to provide Ministers and devolved authorities with the ability to update relevant existing legislation in line with its policy intent, rather than provide for fundamental policy change.
The Government considered a number of relevant criteria for the power to update and settled on scientific advancement and technical change as the most appropriate. Adding extra provisions on trade or economics would be very wide-ranging, whereas the need to update narrowly on tech makes sense. I shall give the Committee a hypothetical example. Medical devices regulations set out a list of equipment that is safe to use. As new medical technology is developed, this power could be used to update the list of permitted devices to include the new technology.
During our EU membership, EU law was frequently updated by the European institutions—I remember sitting in management committee when I was a civil servant—but we now lack the powers to do so ourselves for retained EU law. We cannot allow this body of law to stagnate on our statute book. To resolve this, a Minister or devolved authority may make updates to such legislation to take into account changes in technology or developments in scientific understanding, as appropriate. That ensures that legislation which sits on the UK statute book is able to keep pace with scientific and technological developments and will enable the UK to continue to uphold our high standards. Without such a power, there is a risk that legislation would stagnate and become outdated on the UK statute book. For example, there could be significant developments in technology that we need to be able to respond to quickly and in an agile way in order for the UK to keep pace with such developments and remain competitive. I therefore ask that the clause remain part of the Bill.
Amendments 133 and 134 both seek to place restrictions on the consequential power within Clause 19. Amendment 133 would limit a Minister of the Crown to make only those changes deemed necessary in consequence of the Bill, while Amendment 134 would place a requirement on the Minister of the Crown to consult any interested persons and relevant devolved Governments before using the power to make consequential amendments. The Minister of the Crown would also be required to publish the results of any consultations.
On Amendment 133, I reassure the Committee that the inclusion of a consequential power is standard practice for a Bill where minor additional changes to legislation may be required as a consequence of the changes brought forward by the Bill. To take another example, consequential amendments will need to be made to rename retained EU as “assimilated law” in existing legislation. Were Amendment 133 to pass, it would limit the power to only those amendments deemed necessary. That would lead to a number of problems. In particular, it is not clear whether any consequential provision would ever be truly necessary, as it would be possible to leave the statute book with an erroneous provision and it would likely be interpreted as modified by the Bill.
Turning to Amendment 134, I have already explained that this power is a standard consequential power. The power is not conferred standardly on the devolved Governments, as it is normally exercised by UK Ministers. Should this amendment be passed, it would hinder the ability to make consequential amendments to legislation, which may be necessary to ensure that our UK statute book continues to function effectively. Indeed, it is our expectation that the use of the consequential power, as in other primary legislation, will be interpreted narrowly and limited to making only those amendments that are genuinely consequential and result from changes in the Bill. For these reasons that I have outlined, I ask my noble friend not to press her amendments.
My noble friend also raised the question of devolved nations and of the Scottish Parliament’s consent. We will come to back to that; we understand the concerns raised. I apologise for not being here at the beginning of proceedings, as I had a meeting with the Welsh Government. I know that it has been difficult for everyone because of the extra—but important—days that we have had to debate the Bill.
Can the Minister commit to write to me about an issue that I have raised a few times on different groups? It is about how the Bill relates to the Windsor Framework and how the Government see that evolving.
I certainly undertake to write. There are some uncertainties, as the noble Baroness will understand, so I will update her as much as I can. It is important and we need to be as clear as we can be before Report.
I think the whole Committee would probably like to have sight of that letter, if we may. It goes to the heart of what the noble Lord, Lord Dodds, asked earlier today, because we are still very unclear as to the level of withdrawal of EU laws in connection with the Windsor agreement.
I have the highest regard and the greatest affection for my noble friend, but I have to say that I find it extraordinary that we are about to leave Committee and we still have not heard what the government response is to a very serious issue of the Scottish Parliament having announced that it is withholding its consent to the Bill. The Committee will have to form a view on that—I am sure the whole House would like to form a view on it—as we now proceed to Report. I am extremely disappointed that, having given my noble friends three or four goes, it is kind of like, “We don’t really care what the Scottish and Welsh Governments, or the Northern Irish people, think, because we’re an English Parliament and we are going to proceed”. I am afraid that is the impression I am left with.
We are the UK Parliament. I have said that we will come back to the House on these devolved issues. It may not be possible to do that today, but I thank my noble friend.
Is my noble friend able to say when? Could we have a meeting before Report? It would be helpful to know whether my noble friend will commit to such a meeting. I will take that as a yes.
I have committed to write. Whether or not there is a meeting, we will certainly be in communication.
I am grateful. My noble friend will have soaked up the atmosphere, including in the responses from the two Front Benches opposite, as to the strength of feeling throughout the Bill’s proceedings as to how it would appear that there has not been formal consultation to the extent that the devolved nations would have wished. One has already registered that it has withheld its consent, which obviously calls into question what the next stage will be with the Scottish Parliament in that regard. It has amendments on the table that have not yet been tabled, so we will see what happens there.
I am disappointed that my noble friend was unable to explain—in response to not just my questions but those from the noble Baroness, Lady Chapman of Darlington, as well—why it is only science and technology. Are we including food science in this, or science as it relates to chemicals with regard to UK REACH and EU REACH? I am afraid that more questions have probably been raised during the debate on these small groups of amendments, so personally I would like to return to this at a later stage of the Bill. I am grateful for the opportunity to have debated the amendments this afternoon and, for the moment, I will not press my amendments.