Environment Bill

Baroness McIntosh of Pickering Excerpts

Committee stage
Monday 12th July 2021 Lords Chamber

[Lord Browne of Ladyton (Lab) [V]]

My Lords, I shall speak to Amendment 293A, in my name and that of my noble friend Lady Jones of Whitchurch, the noble Baroness, Lady Parminter, and the noble Earl, Lord Shrewsbury, for whose support I am extremely grateful. It is a pleasure to follow the noble Earl, Lord Caithness, and I thank him and the noble Lord, Lord Krebs, for their support for the interloper amendment in this group, which I hope does not divert too much attention from their respective meritorious amendments.

Lead ammunition use creates multiple problems for which a straightforward solution exists, and that is to ban its use, and by so doing further catalyse the manufacture and sale of available non-toxic alternatives. In accepting that there are other ways to achieve the same objective, what is proposed by Amendment 293A is—by an amendment to Section 5 of the Wildlife and Countryside Act 1981—to ban the use of toxic lead shot

“for the purposes of killing or taking any wild animal”

and requiring this regulation to come into force on 1 January 2023. In the circumstances, this is sufficient time for such a change.

There are no safe levels of lead, which is why regulation has ensured removal of lead from petrol, paint and drinking water. The last largely unregulated release of lead into the environment is from lead ammunition. Some 6,000 tonnes of lead shot and lead bullets are released annually into the UK environment, putting at risk the health of people, wildlife, and livestock, and causing persistent and cumulative environmental contamination. The body of evidence of risks from the toxic effects of lead ammunition is overwhelming and growing, as referred to by the noble Lord, Lord Krebs. Perhaps 10,000 children from the UK hunting community alone are estimated to be at risk of impacts on their IQ and other deficits due to frequent household consumption of lead-shot game meat. Lead poisoning from ammunition ingestion kills an estimated 75,000 water birds per year, plus hundreds of thousands of gamebirds and numerous birds of prey. Domestic livestock is put at risk when feeding on ground which has been shot over through direct ingestion of shot or when feeding on harvested silage from such ground.

Regulation of this sort would benefit the health of people, the intellectual development of children, the health of wild and domestic animals and food safety in restaurants and retail outlets. UK policy is lagging significantly behind the practices and organisational policies of many ammunition users. The vast majority of the shooting community is now behind this change too. I am sure that the noble Earl, Lord Shrewsbury, who has a lifetime of expertise in this regard, will pick up on this point. The National Game Dealers Association has committed to sourcing all game, including gamebirds, duck, venison, and wild boar, from lead-free supply chains from 1 July 2022. Supermarkets and game dealers are suspending sales of lead-shot game meat and our own food outlets here in the Palace of Westminster will not sell you food containing this poison. To continue to allow the circumstances which potentially may occasion the sale of poisoned game from other outlets is no longer justifiable. Yet up and down the country, the health of children is being put at risk wherever lead-shot game meat is consumed by them. In recognition of this and the hundreds of thousands of wildlife lead poisoning deaths each year, health professionals, conservation and shooting organisations and wild game retailers are calling for change.

Non-toxic ammunition is widely available. It is effective and comparably priced. In the 1990s, both Denmark and the Netherlands banned the use of all lead shot, with no impact on the number of hunters, proving that a change to using sustainable non-lead ammunition is possible without impact on the sport. The UK Government have been dealing with the issue and legislation around the problem of lead poisoning from lead shot since 1991. The detail of the multiple costly stakeholder groups, compliance studies, risk assessments and reviews set up by Defra and the Food Standards Agency are well known to the Minister. In 1999, partial regulation focused on protecting wetland birds. However, studies have found the current law to be ineffective at reducing lead poisoning in water birds due to a high level of noncompliance.

Now is the time for policy change. It is now 30 years since the first UK working group on lead shot in wetlands, and one year after the nine main UK shooting organisations—recognising the risks from lead ammunition, the imminent impacts of regulation on lead ammunition in the EU, and the likely impacts on UK markets for game meat—called for change on lead shot.

An identical amendment was debated in Committee in the other place on 26 November 2020. Rebecca Pow, in responding to my honourable friend Fleur Anderson, who moved the amendment, supported the intent of the amendment, and appeared to agree with all the arguments for the ban. Indeed, I expect that the Minister knows and agrees with all the arguments too. He is a well-known advocate of this policy, and probably has deployed all of them himself at one stage. In the debate in the other place, Rebecca Pow, while conceding all the arguments, did not accept the amendment because it did not extend to single-use plastics, of all things. She said that all aspects of the sport needed to be considered and that, as it did not “cover clay pigeon shooting”, it was therefore deficient. She alleged difficulties of detection or enforcement action and, as its extent concerned devolved matters, required legislative consent motions from devolved Administrations—all reasons not to accept the amendment.

These are all alleged impediments that can be overcome, if the Government are willing to engage with the amendment. Set against the continuing known risk to children’s health, none of them can be allowed to be fatal to this amendment, particularly since banning toxic lead gunshot is now the Government’s stated position too. On 23 March, the Government agreed to move further towards a ban, and, in Rebecca Pow’s name, Defra published a press release. In it, she is reported as having said:

“Evidence shows lead ammunition harms the environment, wildlife and people”.


But then she went on inexplicably to announce the commissioning over a two-year period of yet a further review of the evidence and a consultation. During that time, lead ammunition will continue to harm wildlife, the environment, and people.

The effectiveness of an amendment of this nature, as a similar ban has proved in Denmark and the Netherlands, is that it will, at a certain date, remove the demand for lead shot. Only regulation will provide a guaranteed market for ammunition manufacturers; ensure the provision of game, free of lead ammunition, for the retail market; enable cost-effective enforcement; and, importantly, protect wildlife and human health. Action on this issue was recommended in 1983 in the report of the Royal Commission on Environmental Pollution on lead in the environment. As Fleur Anderson in the other place said, action is clearly

“long overdue. Now, at last, is the time to act.” —[Official Report, Commons, Environment Bill Committee, 26/11/20; col. 704.]


My simple question to the Minister is, if not now, when?

[Baroness McIntosh of Pickering (Con)]

My Lords, I am delighted to follow the noble Lord as a fellow advocate. I endorse the comments of the noble Lord, Lord Chidgey, in moving his Amendment 234, on the need to ensure balance in chalk streams, and their protection. We should recognise how popular the sport of angling is and what a wide ecosystem the chalk streams serve.

I particularly support Amendments 235, 236, 242 and 244 and congratulate my noble friend Lord Caithness on his work in this regard; I lend my support to him and my noble friend Lord Shrewsbury in this regard. I entirely agree with what the noble Lord, Lord Krebs, said about Clause 102. I will concentrate on subsection (5), which says:

“Natural England may, from time to time, amend a species conservation strategy.”


I enjoyed the noble Lord’s cautionary tale on newts and I will share with him a cautionary tale that caused a lot of grief in north Yorkshire at the time. This was a case of bats in the belfry of St Hilda’s church in Ellerburn, in the constituency of Thirsk, Malton and Filey, which I had the honour to represent for the last five years that I served in the other place.

I entirely endorse what the noble Lord, Lord Krebs, said about achieving balance; part of that balance has to be the rights of humans—in this case, to worship in a place of worship in the normal way. The level of protection that was afforded for years by Natural England defied all logic. I know that this caused a lot of grief within the Church of England and I pay tribute to the work done not just by local parishioners but the Church of England nationally. I do not think that St Hilda’s church at Ellerburn was alone in this regard. The parishioners and worshippers had to evacuate the church, which was effectively closed for human use. There was a huge cost to clean up the church—noble Lords can imagine the damage that was caused by bats flying around in the numbers that there were. As far as I understand it, eventually an accommodation was reached with Natural England.

My greatest concern is that these species should be kept under review. Badger baiting, for example, was finally outlawed in 1968—I forget the actual date—when badgers became a protected species. But these things should always be kept under review. Grey squirrels are now running out of control in many parts of the country and it is almost too late to go back and protect the red squirrel in its natural habitat. So I am very taken by Amendment 236, with its simple request that the proposals be made available for consultation. I would argue that this should be informed consultation for a substantial period of time—at least 12 weeks—so that all parties can be reached.

I hope that we can reach a balance not just between nature and human use but between rural life and urban dwellers. I am not an expert like the noble Lord, Lord Krebs, but one could probably argue that bats now are fairly commonplace in many parts of the country, where they have extensive natural habitats and do not have to occupy dwellings such as churches or, in many cases, farmhouses. Giving them have a higher order of protection than humans who are trying to ply their trade or, in the case of Ellerburn church, to worship, is frankly beyond the realms of logic and common sense.

So I endorse the amendments put forward by the noble Lord, Lord Krebs, and, in particular, my noble friend Lord Caithness, and I hope that, by reviewing the level of protection and the health of an individual species, common sense and logic will prevail.

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We are concerned that some of the wider recommendations of the Glover review will be overshadowed, when there is a clear case to strengthen the role of individual national parks in working in partnership with local communities to create the beautiful and diverse landscapes, based on local nature recovery strategies, that we all desire. To do this effectively, the powers need to be strengthened. In the forthcoming consultation on the Glover proposals, will we get a chance to comment on these broader issues? Will the Minister agree to meet to discuss how these objectives could best be captured in any legislation that follows that review? In the meantime, I beg to move the amendment.

[Baroness McIntosh of Pickering (Con)]

My Lords, I am delighted to contribute to this brief debate on Amendment 251A and I welcome the opportunity to talk about the purposes of national parks. As in an earlier debate, it is important to read across to what other users of national parks are being asked to do in relation to the Agriculture Act. In considering protections for national parks, it is entirely appropriate to look those who have wider interests than just maintaining a high level of biodiversity and promoting the enjoyment of the ecosystem, very important though that is.

Here, I would like to mention in particular the interests of farmers, landowners, land managers and tourism providers. Regarding the Agriculture Act and the read-across to the Environment Bill and public money for public goods, how do we expect national parks, farmers, land managers and those plying the trade of tourism to actually be allowed to do the work we are asking them to do? It is extremely important to better integrate farming, land management and, indeed, rural development objectives and advice in this regard. Could my noble friend elaborate on how the public goods and productivity strands of the Agriculture Act, the Bill and future policy will operate to ensure that that happens harmoniously?

I pay tribute to all those involved in national parks—tourism and farming in particular have had a very difficult time. Obviously, I am most familiar with the North York Moors National Park, but I had some experience of the Lake District National Park when I was a candidate there a number of years ago. It is important that we celebrate all that farmers, land managers and those supporting tourism in the national parks do. I hope my noble friend will confirm that “having regard to” does relate to these other interests, and that they will not be compromised in any shape or form. Perhaps she can put a little more meat on the bones of what we are going to ask them to do in terms of public money for public goods, through ELMS, in the context of the Environment Bill and the Agriculture Act.

[Baroness Bennett of Manor Castle (GP) [V]]

My Lords, it is a great pleasure to again follow the noble Baroness, Lady McIntosh of Pickering, and to speak in support of Amendment 251A in the names of the noble Baronesses, Lady Jones of Whitchurch and Lady Bakewell of Hardington Mandeville. Indeed, I would have attached my name to it, had I not missed it.

The case has already been very clearly made that we need strengthened protections for national parks—“have regard to” is simply not strong enough in this legislation. I think it is worth going back to the purposes of national parks in the 1949 Act, which include

“conserving and enhancing the natural beauty, wildlife and cultural heritage of the areas specified”.

This goes back to a debate that we had some weeks ago about how cultural and natural heritage are linked, but the main point to make on Amendment 251A is about “conserving and enhancing” wildlife.

Just last week we saw a campaign launched to raise £100 million to renature 13,000 hectares of land on the South Downs. There was much pride about the fact that this would mean that 33% of the national park is managed for nature, which reports suggested exceeds a UN-backed target of 30% by 2030. Of course, that is a target for all of the countryside; one might reasonably expect that to be much higher in our national parks. Indeed, you would like to see that figure going somewhere towards 100%. Of course, that does not mean that you cannot have agricultural production associated with that; we are back to a very long-running debate about sparing versus sharing. But we must note that what we are doing now is not strong enough. We have to do much more, and we need the Environment Bill to do it.

To take just one example, the Yorkshire Dales National Park is a notorious black hole for raptors. When the national park did a consultation with the public about its management, the illegal persecution of raptors was one of the issues most raised. Just a few months ago, we saw a hideous video released by the RSPB investigations team of two buzzards being lured to their deaths in the area.

We also really need to think about whether there are not—and I am sure there are—more areas of the country that need to be protected, whether it is as a national park or in some other way, as the Glover review highlights. The South Pennines has been identified as a prime candidate for a different approach as the only upland region in England that does not currently have not a legal designation.

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[Lord Randall of Uxbridge (Con) [V]]

My Lords, it is always a pleasure to follow my noble friend Lord Cormack. I can immediately make him an offer: once full service is resumed, as I hope it will be soon, I will entertain him and Professor Wilson, and I could bring along someone from the Bat Conservation Trust to show that there is a middle way here. I do not know whether he was in his place during that last debate, when I explained my interest as a trustee of the Bat Conservation Trust. I recognise his genuine concerns, but at some stage we could probably have a good discussion over a cup of coffee and a sticky bun.

I added my name to Amendment 256 in the name of the noble Lord, Lord Krebs, who said everything I need to say, really—I support his sentiments entirely. I also express my concerns about Clause 106 standing part. I do not see it, as my noble friend Lady Neville-Rolfe does, being in any way a Brexit-related matter, just one of making sure that we in this country can have the best conservation and protection for our natural environment and species. Whether that was afforded in the EU, I do not know. I have not always been the greatest fan of some of its regulations, not so much because of the regulations themselves but because of the way in which they were implemented. The Bill is a fantastic chance for us to get ahead of our European neighbours on this.

I also completely endorse the views and sentiments of the noble Baroness, Lady Boycott, on the Swanscombe proposals. I brought up this matter in your Lordships’ House a while ago and we need to take it very seriously, because it is a prime example of something that maybe does not immediately look like the most appealing of natural environments but actually has the most marvellous biodiversity. Once it is gone, it is gone—and what for? A theme park. Is that really how we want to look after our nature?

[Baroness McIntosh of Pickering (Con)]

My Lords, I am delighted to follow my noble friend, and I pay tribute to his work as a trustee of the Bat Conservation Trust. I press my noble friend the Minister to respond to the concerns I raised in the debate on the Amendment 234 group and ask for his confirmation that a greater balance will be achieved between the interests of bats and humans in the context of the closure of St Hilda’s Church at Ellerburn. It is extremely important that the parishioners of that and other churches know that their interests will not be subordinated to those of bats.

I associate myself with the amendments in the name of my noble friend the Duke of Montrose and the amendment tabled by the noble Lord, Lord Krebs, and his co-signees, which proposes that Clause 106 do not stand part. I associate myself with all the comments made by my noble friend the Duke of Montrose on his amendment. I need say nothing more than that I support and applaud the idea, set out in his amendments, of achieving sustainable development and a balance between different uses. In particular, I support the words of the noble Earl, Lord Devon, in support of farming and the rural economy, and I hope that this group of amendments will place on record our desire that a balance be achieved.

In addition to my question about bats in the belfry in the context of St Hilda’s Church at Ellerburn, I press my noble friend the Minister to confirm the reason for the urgency for Clause 106. I understand from the noble Lord, Lord Krebs, that it was added at quite short notice and without any consultation, which is always slightly worrying. Can the Minister confirm—my noble friend Lady Neville-Rolfe hit the nail on the head—that this is, to a certain extent, a consequence of the EU directive on habitats being retained in UK law? Paragraph 955 on page 118 of the Explanatory Notes, which my noble friend the Minister is always keen that we read—I am one step ahead of him in this regard—says:

“The national site network of European sites provides protection for habitats designated for a particular purpose and supports delivery of international and domestic biodiversity objectives.”


I imagine that one of the main thrusts of Clause 106 is to ensure that that list is kept under review—by granting the Government the power to keep it under review—now that we have left the European Union. I urge my noble friend the Minister to continue to obtain a balance between the uses and the different interests that will be exercised in this regard.

How will the habitats regulations be applied when it comes to the planning Bill, which is coming before the House in short order?

[Baroness Parminter (LD)]

My Lords, we on these Benches support the amendments in the name of the noble Lord, Lord Krebs, to which I added my name. He is right to raise the concerns that a number of us have about the intentions of the Government in removing the protections on our most valuable ecological sites and habitats. He mentioned some species that are very important to him; for me it is about the bitterns and nightingales. The Government are proposing, as the noble Lord rightly said, to change the present situation, where there has to be overriding public interest to remove protections for particular sites, to one in which, basically, local authorities have to satisfy the needs of the Bill and meet overall targets for improving nature.

They are asking them to do all that on trust, and as the noble Lord, Lord Krebs, rightly said, the Government’s amendment says that the Secretary of State will decide whether there has been a reduction of those protections. There is no guarantee of consultation with independent experts. I hope the Minister will answer the direct question asked by the noble Lord, Lord Krebs, on that point: will the Government guarantee to consult the independent experts? Without that, we must query their intentions.

There is a slightly broader point about consultation, one which the noble Earl, Lord Devon, raised. The current system works very well when there is proper consultation among all interested stakeholders in a given area, including the businesses, environmentalists and local action groups. It might work well in the Exe estuary; it certainly works well with us in the Thames basin, with the heath development framework. My local authority is working on that with 11 other local authorities, and we have managed to operate within the existing framework of the habitats directive. Meanwhile in Surrey—a heavily developed area—we are building the homes that are needed while protecting our most special ecological sites. The current consultation system is working, so there is no way we should give that up for a system in which there is no guarantee of consultation in future.

Secondly, on the point that the Government are asking us to take all this on trust, the noble Baroness, Lady Neville-Rolfe, said that there is no impact assessment. Surprise, surprise: that is because there was no consultation and it was introduced at Report in the Commons. There is no impact assessment, but there have been multiple reviews of the legislation on the habitats directive and all of them said it should be improved, not revoked. That consultation has involved businesses as well as environmental NGOs and other stakeholders. It is a shame that the Government have not introduced the improvements asked for by those interested parties over the years, rather than going for the nuclear option of suddenly throwing the baby out with the bathwater.

Thirdly, I come to what worries me most about the Government asking us to take this on trust. We have had debates about why they will not include in the Bill the state of nature targets for species abundance, and they said it was because at the moment, they cannot work out the metrics: they do not have the metrics in place and must work out what those targets are. If they must work them out, why do they think it is okay to get rid of the existing system, when we do not have those robust metrics in place? We should not be removing something that is delivering protection for our most valuable ecological sites and allowing developments in hotspots such as Surrey, if we do not have the metrics to prove that we can move from a system that is working to another which may be what the Government want, but for which we do not have the metrics.

The Government are asking us to take too much on trust at this stage. It makes me think that this is really more cover for future changes in the proposed planning Bill, through which they will sweep away protections for particular sites to allow more development in these new zoned areas. I accept that we have left Europe and we need to move ahead. The noble Baroness, Lady Neville-Rolfe, said that we need to move ahead independently. I do not care whether it is independently or not; I want us to move ahead so that we better protect our environment and, at the same time, build the affordable houses we need. The existing system is working and the Government need to provide some very good answers if they are to persuade the House that it should be swept away and replaced by something unproven and not clearly argued.

Environment Bill

Baroness McIntosh of Pickering Excerpts

Committee stage
Wednesday 7th July 2021 Lords Chamber

[Lord Berkeley (Lab) [V]]

My Lords, I am pleased to be able to continue the debate that was adjourned on Monday. In proposing my Amendment 175A, which is to do with blue-green flood-risk management, I follow some excellent speeches on Monday evening, including ones from the noble Lord, Lord Cameron, on nature-based solutions, and the noble Lord, Lord Teverson, on grey water. Alongside blue-green, these solutions are all about the need for an integrated, holistic system of preserving the water supply and dealing with wastewater and storm-water.

It is obvious to say this: rain is valuable and belongs to nobody, but its supply is limited and therefore it needs to be used sparingly. It is sometimes used too much and sometimes used too little. There is too much of it and too little. In the home, as the noble Lord, Lord Teverson, said—and I certainly support his amendment—separating grey water is a great idea. I have also heard that there is more to do because, apparently, some washing machine manufacturers refuse to guarantee machines if rainwater is used. Obviously, you would not use grey water, but it seems to me that rainwater could be used. Why is it not used? It is another source of water, rather than using processed fresh drinking water.

Putting rain into sewers, which then causes overflowing, adds massively to the carbon footprint with pumping and treatment. I spent some time in the last few years wondering why it was necessary for the Thames Tideway Tunnel to be built—not because I did not want the River Thames cleaned up, but because the evidence shows that the water in the Thames meets all the regulations now and, if it were to be started today, the tunnel would be found to not be needed. This is a £5 billion project and what nobody seems to remember or think is that pumping the water from very deep shafts, as they will be when they get to the end, and treating the water, which is mostly either flood-water or river water, creates an enormous carbon footprint. If blue-green had been started and was working by then, this could have all been avoided. Also, of course, it would have created quite a few jobs locally, less skilled than those needed for the tunnelling and all the other work that goes into the Thames Tideway Tunnel. We must always recognise that big contractors love these big jobs—a bit like HS2—and there is often benefit in having smaller work done by possibly less skilled and local workers.

However, that is a slight diversion and I will explain to the Committee a little more about blue-green. It is the idea of keeping as much rainwater as possible out of the sewers. It is quite simple really. There are several ways of doing it. The first one, and the easiest one for many people to understand, is to make sure that the rainwater drains from the roofs of properties and does not go into the sewerage system. It should go into soakaways. Soakaways are suitable in many areas but in other areas maybe they are not.

You can say the same about the run-off from roads, car parks and other hard surfaces. It does not really matter whether they are municipally owned, government-owned or privately owned. It is quite possible—it has been done in a number of cities in the United States—to convert some of these what you might call waterproof surfaces into more absorbent ones and/or build soakaways underneath parks to reduce the peak flows into sewers, so that some of the peak flow goes into what I am calling soakaways. Of course, you carry on by separating the outcomes from these soakaways from the sewage going to sewerage works. The outcome from the soakaways goes into the watercourses and rivers.

This is much easier to do with new builds but one bit of work done in connection with the Thames Tideway Tunnel alternative was to look at the two foul sewers going round, I think¸ London’s Sloane Street, both of which are mixed rainwater and sewage. It would not have been that difficult to convert one into one and one into the other rather than having both having a mix. Retrofitting is also something to be looked at; it would certainly reduce the water rates in existing properties. For new builds, it is obvious. I hope Ministers will look at that with some interest.

One of the other problems which blue-green obviously has, and some of the other solutions may have as well, is the need for so many different bodies to facilitate them—local authorities, obviously, water companies, river authorities, highways authorities, building control, commercial companies, as well as residents. One also needs to look at a way of incentivising people to want to do this. For example, residents might see a reduction in their water or sewerage charges if they accept not putting their rainwater into the sewers. All these things need looking at.

To conclude proposing my amendment and supporting the other two I mentioned, together, we have given the Minister a good package of measures to reduce floods, sewage overflows and carbon footprints, all of which are achievable at not too high a cost, by different means and in different circumstances. In responding to this group, I hope the Minister says that he will take away my amendment and the other two, and come back with one combined proposal to sort out all these issues to the benefit of the environment, water quality, costs and the environmental footprint.

[Baroness McIntosh of Pickering (Con)]

I am delighted to follow the noble Lord, Lord Berkeley. I will speak to Amendments 192, 193 and 194 in my name and say a few words about the amendments in the name of the noble Duke, the Duke of Wellington. I am delighted to support Amendment 175 in the name of the noble Lord, Lord Teverson, which I have co-signed, being an enthusiastic supporter of grey water. Amendment 194A, in the name of my noble friend Lord Caithness, has much to commend it. I think a combination of these amendments will achieve what the Government are trying to do.

I say at the outset that one of the reasons I ask in Amendment 192 for the right to connect to housing developments is that, at the moment, it is not generally recognised that water companies are not statutory consultees on major new developments of 10, 30 or especially more—200 or 300—houses at a time. If the Government are not minded to make them statutory consultees, I hope my noble friend will look at involving local authorities more actively in the drainage and wastewater management plans. I understand that my honourable friend in the other place, Minister Pow, confirmed at the Dispatch Box that all risk management authorities will be required to participate in the drainage and wastewater management plans. I hope my noble friend takes this opportunity to confirm that; otherwise, I might have to bring forward an amendment on it.

I would argue that my Amendments 192, 193 and 194 are supplementary or the other side of the coin to those of the noble Duke, the Duke of Wellington. I would go further, actually; the problem with the noble Duke’s amendments is that the major issue with infrastructure and engineering at the moment is that there is no obvious alternative to storm overflows. Huge investment and disruption would be required, even if no practical issues remained, to provide a solution in the timeframe that everybody would like to see. Closing storm overflows without such alternatives would mean a far greater likelihood of properties and businesses flooding during periods of heavy rainfall. I just recount the visits I have made to, among other parts of the country, my own area of North Yorkshire and Cumbria: it is only when you visit people in the midst of a flood that you see how it affects their health, welfare and well-being. Having sewage in your home through a storm overflow is absolutely disgusting.

The cost estimate for replacing storm overflows is £100 billion and it would probably be much more. I welcome the work being done by the storm overflows taskforce, but could my noble friend put a date on when he thinks there would be any prospect at all of storm overflows being replaced and say what he would like to do in the meantime? Any infrastructure-based solution to replace them would be a massive undertaking in disruption and expense, as I have already set out. We have already spoken, on other parts of the Bill, of the ways that many of us contribute, through wet wipes, cotton buds and other products that trigger blockages.

I am wedded to ending the automatic right to connect, as I have set out in Amendment 192. The Water Industry Act provisions on drainage and surface water are based on Victorian approaches to sewage as a public health, rather than an environmental, risk. This Bill is an opportunity to update that part of the legislation—and not before time. With this amendment, alongside other proposed amendments on overflows, I am calling for a government commitment to review the drainage provisions of the Water Industry Act. With my noble friend Lord Caithness’s amendment on the need to review the Water Industry Act provisions, following these discussions, we could work in great harmony to achieve this together.

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[The Earl of Devon (CB)]

My Lords, it is a pleasure to support the amendments so ably proposed by my noble friend Lord Carrington. I understand from speaking with the Environment Agency locally that these provisions on the removal of water abstraction rights are directed for the most part at large water companies that have for many decades enjoyed the right to extract vast quantities of water from major waterways that they have never used and will likely never need to use. For example, I understand that South West Water enjoys the right to extract over 50% of the water in the River Exe, but it would never use it; if it did, it would cause huge environmental degradation to the sensitive and diverse lower reaches of the river.

If that was all the provisions achieved, they would have my wholehearted support, but they have a much broader impact. Once again, as we have heard, that impact will fall most harshly on the farming community, which will be under such considerable stress in the coming years.

Here, I note once more my farming interests. I also note and pray in aid a number of specific water abstraction rights that our farm in Devon has long enjoyed. Since I took over the farm, I have paid considerable sums each year to preserve those abstraction rights, but I have yet to use them, on the understanding that if those licences were not renewed, they would be lost for ever, impacting considerably the value of the land they serve and permanently restricting the form of agriculture that can be undertaken.

Your Lordships may query why a farmer would pay such sums for water abstraction licences that are not used. That is a reasonable question. The abstraction rights were established in the last century and regularly used then when the farm grew potatoes and other vegetable crops in considerable quantities. Cropping changes since have meant that the rotation now focuses on cereals, for which no irrigation is required, but the ability to extract water has been important, never more so than now.

As we have heard in various recent debates, we need to grow more of our own fruit and vegetables in the UK in the coming years to avoid exporting the environmental impact of a healthier national diet to other countries with lower standards. If we remove abstraction licences, we are in danger of limiting considerably the ability to diversify our nation’s farming, just at the time when we need to be doing the opposite, particularly as global warming is making changes to cropping a necessity. Also, are we not in danger of encouraging farmers now to make use of extraction licences that they do not currently need, solely to preserve them for the future, thereby merely adding to our water consumption?

Finally, it is not clear how these provisions sit fairly alongside basic property rights. Article 17 of the European Charter of Fundamental Rights states:

“Everyone has the right to own, use, dispose of and bequeath his or her lawfully acquired possessions. No one may be deprived of his or her possessions, except in the public interest and in the cases and under the conditions provided for by law, subject to fair compensation being paid”.


Given the Environment Agency already enjoys the power to revoke or change abstraction licences where they are shown to be causing environmental damage, thereby securing the public interest, how are the provisions of Clause 82 consistent with the basic right not to be deprived of possessions without fair compensation?

[Baroness McIntosh of Pickering (Con)]

I am delighted to follow the noble Earl. I would like to lend my support in particular to Amendment 176 and others in the name of the noble Lord, Lord Carrington. I commend his preparation and the detail he has given us this afternoon on this group of amendments and on what he seeks to achieve.

I am nothing other than a farmer’s friend, a fisherman’s friend and a friendly eco-warrior—I speak as a lay person in this regard. But I recall that, when chairing the Environment, Food and Rural Affairs Committee in the other place, for five years, there were two opportunities for our then Government—the coalition Government of my own party, the Conservative Party, supported so ably by the Liberal Democrats, when we had Ministers in each department from both parties—to consider abstraction policy. The first was in the context of the water management Act, which was adopted in 2010, and the second was in the Water Act 2014. Despite enormous efforts from the cross-party members of that committee, we were told that that was not the right time to come forward with an abstraction policy. The Government wished to take time, quite rightly, to consider a proper, well thought-out abstraction strategy and policy.

I look at the Bill and Explanatory Notes before us and I do not think we are quite there yet. That is why these well thought-out amendments from the noble Lord, Lord Carrington, serve a useful purpose in that regard. We have to accept that none of us wants to damage the watercourses, large or small, in any way, shape or form, and that we want to protect our aquifers and water, and particularly the fish and other habitats that are served by our watercourses. But we also have to accept that there are many competing uses of water.

From what I have seen and experienced, the farmers seem to be left as the last thought-about in that list. The mover and supporters of the amendment have explained that it is often the water companies and then industrialists who are considered. For example, it could be a brewery or a manufacturer; on a number of occasions I have visited Wilkin’s jam manufacturer—I admit to having a sweet tooth, and it is always a joy to visit. Many companies such as that are users of water and responsibly control its use. I urge my noble friend Lady Bloomfield of Hinton Waldrist to look carefully at ways in which farmers can have adequate provision of water supply.

The grace period should remain until 2028, for all the reasons that those speaking in support of the amendments have given. As the noble Lord, Lord Carrington, requested, there should be a licence plan, a formal appeal system and clarification of a new agreement—in fact, I think it was the noble Lord, Lord Cameron of Dillington, who suggested it. I entirely agree with what he signed up to, but moving that proposal forward to 2023 would be extremely ill advised.

I shudder for the future of farmers and their use of water at certain times of the year. I am concerned because, when one considers North Yorkshire, as one of the most rural counties in the country, there are times when there could be a flood in one part of the county and severe stress in its north-east. We must be mindful of the fact that there may be a need to abstract water in the summer months. I urge my noble friend the Minister in her response to express a note of caution, and I hope that the Government will take this opportunity to come forward with a proper, well thought-out abstraction policy within the context of the Bill.

[Baroness Young of Old Scone (Lab) [V]]

My Lords, the pressure on our wetlands, rivers and aquifers is huge and growing. Demands for water from domestic and business customers, and from agriculture, are increasing. Climate change is reducing the supply and reliability of rainfall, as well as increasing our demand on water resources. I cannot believe that it is 20 years since I started campaigning for the withdrawal of damaging abstraction licences; it is a sad state of affairs that the argument has not yet been completely won.

I cannot support Amendment 176 in the name of the noble Lord, Lord Carrington. Water is a resource that we all must share. Historic abstraction rights are just that—historic happenstance—and can be inequitable in their impact on the environment and other water users. Overabstraction of water from low-flow rivers can have long-lasting damage; it can cause fish and other wildlife to be lost for ever, particularly in chalk streams. None of that will help with the Government’s biodiversity target if overabstraction continues. It can also result in salt water contamination of water resources, including groundwater, which is difficult to remediate.

In the Water Act 2003, we made some progress with the right to compensation for holders of licences that were causing serious damage being withdrawn, but that was a small provision, and rarely used. The Water Act 2014 removed the requirement to pay compensation for water company abstraction licence changes, which was another step forward.

Many farmers already farm under sustainable abstraction licences and have developed innovative solutions for reducing the amount of irrigation water needed, and developed more on-farm reservoirs, as outlined knowledgably by the noble Lord, Lord Cameron of Dillington. We need to pay farmers under ELMS for developing innovative solutions in adapting to a changing climate. Amendments 176A, 180A and 187ZA, tabled by the noble Lord and outlined so eloquently by him, are highly reasonable, practical and fair, and would enable an acceleration of the deadline by which abstraction should cease. His amendments are based on a lifetime of practical agricultural experience and gain much stature from that. There can be no argument at all about removing compensation for variations to licences to remove excess headroom, where historic licences with unused headroom are hampering the more flexible allocation of water.

I also support Amendment 179A—again, one of the splendid amendments of the noble Lord, Lord Carrington of Dillington—which would correct the narrow definition of ecological health and enable changes to be made in licences that are preventing the effective conservation management of sites of special scientific interest and where abstraction is causing damaging low flows in chalk streams and the main salmon rivers.

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Moved by

[Baroness McIntosh of Pickering]

188: Clause 83, page 81, line 17, at end insert—
“having regard to the constraints of the periodic price review to which water companies are bound.”

[Baroness McIntosh of Pickering (Con)]

My Lords, I am delighted to move and speak to Amendment 188 in my name and to speak briefly on the other amendments in this group. I revert to what my noble friend said in summing up two groups ago. He said: “It is for water companies to improve their act and, indeed, under the Act, they are required to do so.” I put in an early bid, because I am starting to feel left out. I am one of the few who has not actually met the Minister, so I should like to meet him to discuss this point, together with the others who have already expressed interest.

I shall briefly sum up what the water companies are being asked to do. I am grateful to the Minister for referring to Clause 78(3)(a) to (g) and all the measures set out therein, which are not insubstantial. I also refer to my earlier remarks, which I shall not repeat, about the fact that we are grappling with Victorian infrastructure, combined with intense climatic changes, leading to sewage overflows. Not inconsiderable new expense is required to replace that infrastructure, so that is a new expense.

In my Amendment 188, I ask my noble friend to say at the outset that the Government will have regard to the constraints of the periodic price review to which water companies are bound. Essentially, non-regulated companies and regulated companies alike, such as water companies, which are regulated, are able to raise funds in the financial markets from either debt or equity investors. Non-regulated companies might typically do so to invest in additional capacity or new products or services so that they can increase future revenue from higher sales or higher prices, from providing a higher value service to customers and, from this increased revenue fund, the additional investment on a sustainable basis. However, regulated companies such as water companies, may be providing services largely on a monopoly basis, as here. Water companies are, rightly, being required to reduce water consumption—that is, sales of their core product—rather than increase it and cannot increase prices beyond the limited set at price reviews. This means that ensuring that price reviews focus sufficiently on the investment needed to meet long-term challenges is crucial.

I am asking for an acceptance that many of the obligations which water companies are required to meet are outwith their control. I referred earlier to the fact that they are not, as yet, statutory consultees. I welcome my noble friend’s reference to them being consulted on the new drainage and water management plans. I think we will all watch like hawks to see that that is the case.

I remind the Committee that houses built on floodplains after 2009 are not covered by Flood Re for insurance purposes if they flood. People frequently overlook that. Also, connections should be made only if the infrastructure is securely in place to carry the raw sewage safely away and not cause it to flow into combined sewers, which will lead to spillage, such as we discussed in previous amendments.

My question to my noble friend is precisely how much water companies can raise as part of the periodic review to cover that essential expenditure. He is absolutely right to say that the water companies are just about to embark on the next stage price review, so this is very timely.

My noble friend referred to the Explanatory Notes. Did the Government consult on the content of the Explanatory Notes and Clause 78 as regards the expenditure the water companies are being asked to make? Also, if we are unable to raise the money through the price review, or there is a limit on what we can raise, how can the Government encourage more private partners into flood prevention schemes under ELMS? I commend the partnership schemes that the Government have encouraged, but there is that little niggle.

On Amendments 188A, 188B and 188C, and Amendments 189 and 189A on water efficiency, there were three substantial reports in the 1990s. The Cave report on competition has largely been considered in relation to the competition aspects of retail and household delivery. I referred earlier to the Pitt review, all but a few recommendations of which have been actioned. Then there was the Walker review, under Anna Walker, on water efficiency, which has largely been overlooked. Much of that can be achieved by building regulations or, as we see in the amendments before us, labelling as well as building regulations.

I make a plea to the Government about how important it is to encourage the use of labelling. Without an accompanying label, with changed building regulations and minimum appliance standards, it is simply not possible to get household consumption down to the levels we need, which is the Government’s target. Introducing a labelling scheme alone will save 13 litres per person per day, but by accompanying it with minimum standards, that increases the saving to 27 litres per person per day. The difference between those numbers equates to about 1,000 megalitres per day by the second half of this century. That is roughly equivalent to a third of the current leakage losses. On their own, without any labelling initiative, changes to building regulations reduce consumption by a further 14 litres per household per day by 2065, equivalent to another third of current leakage losses.

I welcome those amendments and hope the Government will focus as much on water labelling and water regulation as on giving the water companies the ability to raise money they need through the price review.

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[The Deputy Chairman of Committees (Lord Russell of Liverpool) (CB)]

I have received one request to speak after the Minister, from the noble Lord, Lord Randall of Uxbridge. Lord Randall? Uxbridge is offline. I call the mover of the amendment, Baroness McIntosh of Pickering.

[Baroness McIntosh of Pickering (Con)]

I thank all noble Lords who have contributed to the debate, especially those who spoke in support of Amendment 188.

I pay tribute to my noble friend the Minister. It must be pleasing for him to see his work on the quality of life come to life. I commend a slightly shorter report that we did on bricks and water, which goes to the point of building regulations and minimum standards. I am pleased that he is committed not only to labelling but to the work being done with the Ministry of Housing, Communities and Local Government on minimum standards. As the noble Baroness, Lady Parminter, said, that is extremely important. I share the concern of the noble Baroness, Lady Jones of Whitchurch, that Clause 83 allows a potential weakening of the EU water framework directive. I hope this will not be the case and that, if anything, we might impose higher standards, which we would wish to meet.

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[Baroness Hayman of Ullock (Lab)]

My Lords, Amendment 194AA is in my name and those of my noble friend Lady Jones of Whitchurch and the noble Baroness, Lady Bakewell of Hardington Mandeville. This amendment would require the Secretary of State to publish a report on flood risk, to help realise the potential of the nature restoration intended to be delivered by the Bill and to reduce flooding risk. Disappointingly, “flood” appears in the Bill only once, on page 188, in Schedule 10, relating to enforcement powers. It is a huge omission that an environment Bill is not seriously addressing flood risk, leaving many communities woefully unprepared to tackle flooding.

The new office for environmental protection, created by the Bill, is responsible for scrutinising government policies to safeguard the environment, but it has no powers to improve measures to tackle flooding. In the Agriculture Act, the environmental land management schemes include provisions to tackle flood risk, but this is not an issue just for farmers and landowners to manage. For example, planning and development can have a serious impact on increasing flood risk, as can how we manage our reservoirs. Currently, water companies have to manage reservoirs and take drought into account—we know that drought reports have to be prepared—but not flooding or flood reports.

The UK has a legacy of development within areas at risk of flooding from river water, surface water and groundwater. Continued development of rural and low-lying areas has led to about 6 million properties being at risk of flooding. In addition, a Defra report has predicted that this number is set to increase and identified flooding as the greatest risk posed to the UK by climate change—so why is flood risk not a central part of this section of the Bill?

The Minister may well refer to the Government’s National Planning Policy Framework, which requires local authorities to demonstrate that the issue of flood risk has been considered as part of the planning process, through the flood risk management hierarchy. Alongside the NPPF, the planning practice guidance on “Flood risk and coastal change” sets “sequential” and “exception” tests and thresholds to protect property from flooding, which all local planning authorities are expected to follow. Where these tests or thresholds are not met, new development should not be allowed. But none of these recommendations means that developments or redevelopments in flood risk areas will not be approved. The planning process is there only to ensure that flooding is taken into account in development proposals.

In your Lordships’ House, in response to a Written Question in February 2016, the then Parliamentary Under-Secretary of State for Communities and Local Government, the noble Baroness, Lady Williams of Trafford, said:

“Development can not be ruled out in high flood risk areas”.


I know of too many cases where a developer has been able to build in flood risk areas, despite serious local concerns, offering mitigations to ensure that the development would not flood. However, flood waters have to go somewhere, and the outcome is too often the flooding of properties that have never experienced this before.

I am particularly concerned that the Government’s new planning proposals will only increase the numbers of homes being built in areas of flood risk—a number of noble Lords mentioned this concern in earlier debates. We could end up with new houses and other developments being built in the wrong places, and, once built, they will present a long-term and continuing flood-management problem. Government must make sure that planning policy keeps up with climate change and that, despite the housing shortage, planning must take increasing flood risk into account in deciding where new homes should be built.

A key problem in effectively managing flood risk is the lack of an integrated approach to catchment management and the number of regulatory bodies: the Environment Agency is cash-strapped, the water companies are regulated by Ofwat—with a focus on keeping bills down—and farmers are regulated by Defra and incentivised through the CAP and now ELMS. The Environment Bill is an opportunity to pull together all the different strings of the water sector to have an integrated catchment approach to tackling flood risk.

Floods happen; they always will. The question is how to limit their impact. When serious flooding occurs, as it did in 2015 in the community where I live, and in many others around the country, everyone works flat out to do whatever they can during the crisis. Government praises everyone involved and promises the moon—but terms like “unprecedented” and “climate emergency” do not alter the fact that the current approach to tackling flooding and future flood risk is clearly not fit for purpose.

Understandably, the main focus when extreme flooding happens is its impact on human lives and livelihoods, but it is also an environmental disaster. Floods increase surface run-off, exacerbating erosion and introducing more soil, organic matter and pollutants into watercourses. Studies have shown that plant biomass and the abundance of both vertebrates, such as fish, and invertebrates can be dramatically reduced by extreme floods. Noxious hydrogen sulphide fumes and lead poisoning are among the threats from floodwater contamination. Many animals are at risk of being poisoned by floodwater redistributing pesticides and toxic chemicals from industrial sites. Hibernating bumblebees, ground beetles and caterpillars are at risk of dying at greatly elevated rates because the floods and heavy rainfall are drowning them and interfering with their hibernation. Hedgehogs are already undergoing a national decline, and floods just put extra pressure on them: unless they get to areas of high ground, they drown.

We need an integrated approach to flood management that works with the environment to manage land and water in ways that benefit both people and our ecosystems. Why are the Government not using the Environment Bill as the opportunity to deliver this? I beg to move.

[Baroness McIntosh of Pickering (Con)]

I am delighted to speak to and support Amendment 194AA, on a “Flood risk report”. Too often, where there have been major floods, as there were many times in the 2000s and since, people tend to forget and Governments fail to take major action once the flood waters have receded, so I echo what the noble Baroness, Lady Hayman, said in moving her amendment.

I make a plea to my noble friend the Minister, particularly on the issuing and updating of planning guidance. I mentioned earlier the fact that, at the moment, developers are building on flood plains and not making the buildings secure, flood-proof and resilient to floods. It is only when the householder makes a claim that they find out that it will not be met, in part or in full—particularly if they bought without a mortgage, in which case they probably have no idea that they are not covered by insurance.

On many occasions, in both the other place and here, we have tried to make it a requirement for developers to have regard to building sustainable drainage systems—SUDS—to take surface water away from sewers and combined sewer outflows. This amendment is an opportunity to ask my noble friend if the Government have moved on this and whether they plan to update and amend planning guidance to make SUDS the preferred option for managing surface water in all new developments.

I make the simple suggestion of empowering sewage undertakers to discharge rainwater downpipes, with nothing nasty in them, into local soakaways, as opposed to the current legislation, which requires a new public sewer to be provided to take the flows away, immediately mixing them with sewage—this seems a wanton wastage of resources and infrastructure. I hope that my noble friend will look favourably upon this.

Such a flood risk report as this amendment would allow for would give the opportunity for my noble friend and his department to review the partnership approach. As he mentioned earlier, the environmental land management schemes—ELMS—will allow flood prevention schemes to take place, and so allow the Government to do an audit in that regard. That is another reason I hope that, if not in this amendment, the Government will look favourably on some way of monitoring flood risk going forward.

[Baroness Bennett of Manor Castle (GP) [V]]

My Lords, it is a delight to follow the noble Baroness, Lady McIntosh of Pickering, whose comment about building on flood plains reminds me of the simplest, clearest explanation of why this should not happen: a flood plain is not beside the river; it is part of the river. I greatly appreciated her focus on sustainable urban drainage schemes.

I commend the noble Baroness, Lady Hayman of Ullock, for tabling Amendment 194AA, and I commend the noble Baronesses, Lady Jones and Lady Bakewell, for supporting it. Indeed, I would have done so myself, had I not simply missed it. We are talking about joined-up government here, with two critical issues that have a huge impact on people, businesses and the natural world coming together: the environment and flooding. We know that the Government talk about joined-up government thinking and nature-based solutions, but it is a great pity that, up until this point, we have not seen this added into the Bill.

Environment Bill

Baroness McIntosh of Pickering Excerpts

Committee stage
Monday 5th July 2021 Lords Chamber

In short, it is simply unacceptable for the UK to send its plastic waste abroad for others to deal with, and we should use the Bill to set out that principle in law. If we have more plastic waste than we can dispose of within our shores, we must produce less plastic and find an environmentally friendly way to deal with this.

[Baroness McIntosh of Pickering (Con)]

I am delighted to follow the noble Baroness, and I congratulate her on bringing forward these amendments. I also congratulate the Government on introducing, in Clause 61, the transfrontier shipment of waste clause that sets out the power to prohibit the transport of waste for export and, I understand, later in the clause, the transit of waste for importation as well. I received a very good briefing—I think the same one the noble Baroness received—that shows that the UK generates almost more plastic waste per person than any other country in the world; we are second only to the US. Apparently, in the last two years for which there are reported figures, we exported two-thirds of plastic waste separated for recycling that was collected in the UK. I wonder whether my noble friend the Minister, when she comes to conclude this debate, will confirm that this is a very real problem that is increasing because our landfill sites are full, and they would be the natural place for the plastic waste to go. I am not saying that they are the right place, but they are where recently the waste has been sent. So I welcome the fact that we have identified the lack of infrastructure in these amendments, as set out by the noble Baroness who tabled them. We should set up the appropriate infrastructure in this country.

Many may recall what I call the “first” Hartlepool by-election, in the early 2000s. I visited the Able plant near Hartlepool, where there was a very successful operation for dismantling “ghost ships”—I think that is what we called them. They were rusty bucket ships that had previously been sent to India and other places, where they did not have the infrastructure to dismantle them. We had, in that plant, an extremely successful operation where they had built up the expertise and the skills to use here in this country. It meant that we were disposing of these ships safely. We need to learn that lesson and convert it to the recycling and disposal of plastics.

I commend the University of York: in One Planet Week in February 2019, its researchers created a new system for recycling single-use plastics used in some of their successful scientific experiments. The technique that they have developed will prevent one tonne of plastic per laboratory ending up in landfill sites each year—or, as the amendments would indicate, otherwise being exported, which seems to be the current trend. The successful technique involves the implementation of an in-house decontamination station. If that can be used on site in one university, I hope we can adapt that technique and roll it out across other parts of the country. I hope my noble friend the Minister will commend that and look to set up similar infrastructure, which is obviously inexpensive to set up and probably just means tweaking the current operations that are already in operation throughout the country. That way, we will be able to dispose of much more of our own plastics in this country and will no longer be seeking to export them abroad.

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[The Earl of Caithness (Con)]

My Lords, I am very happy to put my name to the noble Baroness’s amendment. She has moved it extremely well and there is very little for me to add, except to say that I want to go a bit further than she does. Therefore, I have also tabled Amendment 149A in my own name, which focuses specifically on supermarkets.

Noble Lords might very well ask why I am focusing on supermarkets when they have very little waste. I am focusing on them because I want supermarkets to take responsibility for their supply chains, and not just the food on their premises. To do this, we need mandatory reporting at farm level, which is currently not reported at all, and could account for as much as 25% of all UK food waste. Transparent reporting will reduce the food waste by big retailers, benefitting the environment, the climate and natural resources. A levy ought to be charged on supermarkets proportional to the food waste in the UK supply chains.

Why is mandatory reporting so important? There has been voluntary reporting, but it does not work; the firms are not reporting. Only 60 companies are reporting their data publicly, and more than 500 large companies are not reporting at all. It has to be mandatory reporting. The targets also need looking at because, under the voluntary commitments, UK food businesses have carefully achieved measurable food waste reductions of just 0.23 million tonnes between 2011 and 2018. It is estimated that between 3.78 million and 6.38 million tonnes of food waste occurs in primary production, manufacturing, retail, and hospitality and food services. The saving that has happened—which everyone will praise—is less than 1% a year. That is not satisfactory; that is not good.

The Government’s timetable is slow. It could be speeded up, and I recommend that it is. The Government have been inactive for far too long. Indeed, Tesco itself says that mandatory reporting and a speeded-up programme are absolutely vital to meet sustainable development goal 12.3. My amendment is an important addition to the one moved by my friend the noble Baroness, Lady Boycott. In conclusion, it is worth just pausing to think that Tesco makes £4 billion annual profit from food that its customers waste at home. The point of my amendment is to try to reduce that.

[Baroness McIntosh of Pickering (Con)]

I am delighted to follow my noble friend and I support both him and the noble Baroness, Lady Boycott, in the sentiments behind their amendments. In looking at the factsheet that was circulated by the department in connection with this Bill, I welcome the fact that the Government are minded to introduce regulations to, in the words of the noble Baroness, Lady Boycott, move food waste further up the hierarchy, so that there will be less left at the end. I particularly welcome the two amendments in this group as probing amendments, and ask my noble friend: is there not a degree of urgency that we need to do this?

I may have one point of disagreement with the noble Baroness, Lady Boycott. She and I both have family living in Denmark, I understand, and I have been immensely taken by the contribution that the Danes, other Scandinavians and Austria and Germany have made to enhancing energy from waste. I prefer to call it “energy from waste”; I know others call it incineration. I had beer poured over me once in my surgery when I was a Member of the other place; since then, I have called it “energy from waste”. This is the ultimate circular economy, because you are taking potential food waste and putting it into the system—the residual; I accept the hierarchy, and it should be the absolute minimum. The community benefits because it would go, ideally, into the local grid. There is a now a big incinerator in what was my original constituency, the Vale of York. The gripe I have with it is that it goes into the National Grid, whereas, as north Yorkshire is very cold, it should go into the local grid.

The factsheet also set out the importance of reducing the amount of food waste—as do both the amendments in the names of my noble friend Lord Caithness and the noble Baroness, Lady Boycott—which is currently estimated as producing 25 million tonnes of CO₂ gas emissions every year through 9.5 million tonnes of food and drink which is wasted annually post farm gate. I take those figures as being accurate, as I understand that they are in the factsheet we received.

I press my noble friend when he sums up that there is a sense of urgency here: however we address it, we need to reduce that waste. I pay tribute to the work of the noble Baroness, Lady Boycott, not just on feeding Britain, as I think she called it, but for the national food strategy, as one of the team with its author, Henry Dimbleby. I look forward to hearing the official government response to Part 1 of that report.

[Lord Blencathra (Con)]

My Lords, I declare my interests as on the register. Like my noble friend Lord Caithness, I support the thrust of both these amendments, though neither goes far enough, in my opinion, including my noble friend’s amendment.

Amendment 149 applies only to retailers generating more than 10 tonnes of food waste and in stores of more than 400 square metres. I would reduce those sizes by half and apply them to everyone producing food waste: retailers, manufacturers and the catering industry. We have no idea of the extent of food waste in the catering industry. Today’s uneaten roast chicken should be tomorrow’s soup or curry.

Similarly, Amendment 149A in the name of my noble friend Lord Caithness is absolutely right in concept, especially the idea of reducing food waste across the whole supermarket supply chain. We often concentrate on the food that is unsold in shops at closing time, but we really need to tackle the rejected misshapen carrots, the less-than-perfectly shaped tomatoes and all the other food that is thrown away before it gets to the shops or caterers. A lot of organisations, to which the noble Baroness, Lady Boycott, referred, usually charities, are seeking to use up food before supermarkets throw it away. My noble friend Lord Caithness is right to seek to reduce all food waste across the supply chain, before it gets to the ultimate shop or caterer.

In my opinion, it is wrong to set the bar at supermarkets with a turnover of £1 billion. That is too high. I would apply it to all retailers, manufacturers and catering outlets with a turnover of more than £200 million. As an aside, if I may say so—probably improperly—I hope there is still a Morrisons supermarket in five years’ time we can apply it to, after the vulture capitalists have loaded it with debt, robbed the pension fund and asset-stripped it. But that is possibly for another day.

Neither of the amendments deals with the appalling waste of food in our homes but, again, that is not a discussion for the Bill today. If my noble friend the Minister cannot accept the amendments, I hope he will stress to all those in the food supply business that at some point, the Government will be bearing down on them to drastically reduce all food waste at all points in the food supply chain and across all food outlets.

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[Lord Blencathra (Con)]

My Lords, I declare my environmental interests as in the register. I support the noble Lord, Lord Cameron of Dillington, and his Amendment 163A, which encourages sewerage under-takers to consider nature-based solutions for wastewater treatment.

We have new and emerging threats in trying to treat wastewater. We have microplastics and increasing levels of hormones and other pharmaceuticals, as well as an increasing range of chemicals flushed down toilets to clean them. These are called contaminants of emerging concern—CECs—and the traditional approach would be to use different and even stronger chemicals to neutralise them, although I am not sure how one can neutralise microplastics. This is where nature-based solutions can play a big part. We all know that nature-based solutions near and on rivers can reduce flooding, cut down on nutrients getting into rivers and the sea and improve biodiversity. They can do the same thing before treated water even gets to the rivers.

In the next group is the new clause from my noble friend the Minister on stormwater overflows, which is long overdue. We must stop ordinary rainwater from entering the sewerage system and adding millions of gallons of clean water to wastewater, making the whole lot in need of treatment. In addition, we need a campaign to educate householders not to pour gallons of poisonous cleaners down the loo. I think we are still trapped—well, some older noble Lords might remember this—in the old Harpic advert of the 1980s, with its slogan of it being essential to clean “right round the bend”. It was a great slogan that has encouraged millions of us to use unnecessarily powerful chemicals to tackle a non-existent problem of cleaning sewerage pipes and not just the toilet itself.

In addition to reducing the amount of water which becomes wastewater in need of treatment and reducing the poisons we add to it, we need sewage treatment works to adopt, where possible, alternatives to chemical treatment. The main alternative has to be reed beds, which work exceptionally well and do a perfect job. Of course, reed beds and treatment require space and they are not the solution for many urban areas but they can be a much greater solution than they are now. Amendment 163A merely states that a sewerage undertaker in its management plan must address

“the opportunities for nature based solutions”.

As I read it, there is no compulsion, no fixed targets; it merely asks them to look at the opportunities to do it. In my opinion, that does not impose an unreasonable burden on them and I urge my noble friend the Minister to accept it, or accept the concept, anyway.

[Baroness McIntosh of Pickering (Con)]

I welcome this part of the Bill. I refer to my interests as in the register, in particular that I am vice-president of the Association of Drainage Authorities and that I worked with the Water Industry Commission for Scotland for a number of years. I also declare my interest as co-chair of the All-Party Parliamentary Water Group. I welcome Amendments 160A, 160B, 160C as probing amendments and would like to follow up the comments made by the noble Lord, Lord Cameron, and my noble friend Lord Blencathra.

In the regulations to which the Government refer, and as referred to specifically in the amendments by the noble Lord, Lord Cameron of Dillington, it would be helpful to know who the consultees are. I wish to place on record what an enormous difference it has made since the Environment Agency became a statutory consultee to applications for major new developments. I know that at one stage drainage boards themselves would have liked to have been considered as statutory consultees in relation to similar amendments, but they are focused more now on the provisions of the Bill which relate to drainage authorities, which I personally welcome, and which we will come to later. It is essential in my view—and I do have an amendment down to this effect—that water companies be considered as statutory consultees, for reasons which we will discuss elsewhere.

I welcome the references to water efficiency in earlier parts of the Bill, and I am delighted that the noble Lord, Lord Cameron of Dillington, referred to water moving between catchments. Catchment management control is a very positive way forward. He also referred to reservoirs. Has my noble friend the Minister had the chance to look at—and, if not, will she look at—the most recent advice given by Professor Balmforth on reservoirs? I particularly support what the noble Lord, Lord Cameron, said about smaller reservoirs, particularly in the context of what my noble friend Lord Blencathra said about nature-based solutions. We had an extremely successful scheme with the Slowing the Flow at Pickering pilot project, which only involved public bodies, and I am delighted to say that Pickering has not flooded since we have had this scheme in place. I pay tribute to all the partners—albeit public partners—that have been involved. We can slow the flow not just by building reservoirs, as those of a particular size do pose problems because of the current legislation, but smaller bunds and dams, and smaller reservoirs all have a role to play.

I welcome these as probing amendments to see specifically what form of consultation the Government have in mind in the context of these provisions in Part 5.

[Lord Oates (LD) [V]]

My Lords, I am pleased to follow the noble Baroness, Lady McIntosh of Pickering, and I welcome the amendments put forward by the noble Lord, Lord Cameron of Dillington, on the important issue of consultation.

As noble Lords are aware, the Bill as currently drafted would delete subsection (8) of Section 37A and subsection (7) of Section 39B of the Water Industry Act 1991, which provide for a list of statutory consultees that “shall” be consulted, to use the wording in that Act. It replaces those subsections of that Act with a new Section 39F which would allow, but does not require, the Secretary of State to make provision for preparing and publishing a water resources management plan, a drought plan and a joint proposal. It fails to set out the list of stakeholders which must be consulted, as required in the existing Act. The amendments in the name of the noble Lord, Lord Cameron, would address that.

I note that, back in 1991, it seems that Bills that came before Parliament were a lot less equivocal than what we have now. The word “shall” rings out throughout the Water Industry Act 1991, whereas the word “may” is the dominant phrase of this Bill. Of course, the use of “may” puts far more power in the hands of Ministers and far less power in the hands of Parliament. Beyond the issues directly addressed in these amendments, there are a number of subsections in the new Section 39F which involve “may” where, in my view, a “shall” would be much the preferred formulation. Section 39F(5), for example, provides that

“regulations may make provision for the purposes of ensuring that persons likely to be affected by the plan or proposal have a reasonable opportunity to make representations to the Minister.”

Again, it would be useful if that was a “shall”, and the Bill would be considerably improved if most instances of “may” became “shall”. But for the moment, we on these Benches are happy to support the amendments in the name of the noble Lord, Lord Cameron.

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[Baroness McIntosh of Pickering (Con)]

I am delighted to follow my noble friend Lady Redfern. There are a number of extremely interesting and pertinent amendments in this group. In a way it is a pity the group could not have been attached or somehow linked to the amendments in the group which follow—obviously it would have been too big. Were the amendments I shall be speaking to in the next group to be accepted, there would be no unwanted sewage overflow or discharge. They refer back to the well-researched and constructive proposals put forward by Sir Michael Pitt, who was responding to the 2007 surface water flooding of that year. Obviously it is regrettable that many of his recommendations have still not been put into effect.

The amendments in this group carry a lot of favour, not just within the House but from bodies such as the coalition of Surfers Against Sewage, the Rivers Trust, Salmon & Trout Conservation, Wildlife and Countryside Link, Windrush Against Sewage Pollution, and the Angling Trust, many of which have been working in particular with my noble friend the Duke of Wellington to put meat on the bones of these amendments, which obviously aim to reduce the sewage overflow. Amendment 161 in particular, in the name of the noble Baroness, Lady Jones of Whitchurch, looked to my right honourable friend Philip Dunne’s Bill in the other place. The aim of that amendment and others in this group is to stop the discharge of untreated sewage going into inland waters. Obviously, I commend that. However, these amendments are only part of the solution.

It is unacceptable that water companies are being forced, in many respects, to connect to major—and sometimes even only minor—new developments but where those connections are unable to be made safely. It inevitably leads to the situation that this group of amendments seeks to address. The amendments in this group are, therefore, a necessary part of the solution but they would go only so far in placing a legal duty on water companies to stop the discharge of water sewage, which I think is what both the noble Baroness, Lady Jones of Whitchurch, and my noble friend the Duke of Wellington are seeking to achieve. I hope that we can go further back in the process and look to prevent many of these false or unsafe connections being made in the first place. I am delighted to say that the coalition of Surfers Against Sewage and others is aware of that and it is their intention to support my amendments in the next group.

The reason why I care so much about the amendments in this group is because, when I was an MEP, I participated in a number of Blue Flag awards for beaches in my then Essex constituency—for the first five years I had the whole of the Essex coastline in my European Parliament constituency and, for the next five years, it included part of the Suffolk beaches and most of the Essex beaches. As an enthusiastic swimmer, I went and had a swim after one of these Blue Flag awards—it would have been at some point in the 1990s—and I regret to say that 48 hours after that short swim I went down with gastroenteritis, and I have a pretty good idea of the reason why.

I hope that my noble friend will look favourably on many of these amendments and will also marry up to this idea that the connections should not be made in the first place. I welcome the amendments in this group, but we are dealing with pollution after the event and that pollution could be prevented in the first place. However, I commend to my noble friend Amendment 161 and the amendments in the name of my noble friend the Duke of Wellington and the noble Lord, Lord Cameron of Dillington, as something we should very seriously consider adopting as part of the Bill.

[The Deputy Chairman of Committees (Baroness Garden of Frognal) (LD)]

The noble Lord, Lord Cormack has withdrawn, so I call the noble Baroness, Lady Young of Old Scone.

Environment Bill

Baroness McIntosh of Pickering Excerpts

Committee stage
Wednesday 30th June 2021 Lords Chamber

[Lord Anderson of Ipswich (CB)]

My Lords, I agree with the noble Baroness, whom it is a pleasure to follow, that the risk of penalty fines concentrates the mind wonderfully. When I used to defend Defra from the attentions of the European Commission in urban waste-water cases, I suspect the prospect was quite useful in concentrating the mind of the Treasury when money was requested for the Thames super-sewer and other mitigations. The Minister will say that no fining mechanism is necessary when the OEP has at its disposal a sufficiently intimidating set of judicially enforceable remedies. In the abstract, he may have a point, but, when looking at the Bill, as the noble Lord, Lord Duncan of Springbank, said at Second Reading, it is important not to confuse a full set of teeth with a flashy set of dentures. My Amendments 105 to 108 seek, in particular, to equip environmental review, the only route generally available to the OEP, not with dentures but with teeth.

The crucial amendment, to which the noble Baroness has already referred, is Amendment 107. In any case likely to prove contentious, it will be worthwhile for the OEP to pursue environmental review only if strong and enforceable remedies—notably, the power to quash unlawful decisions—are available at the end of the road. Clause 37(8), which is without precedent in any Act of Parliament, removes the court’s power to grant such remedies, no matter how much or little time may have elapsed, and no matter how serious the damage to the environment or public health, unless the court can satisfy itself that the grant of a remedy would not be likely to cause substantial hardship to, or substantially prejudice the rights of, any person. This is, though disguised in the drafting, a rebuttable presumption against the grant of any remedy at all.

There is a yet further hurdle: the court would have to be satisfied also, before granting a remedy, that a remedy would not be “detrimental to good administration”—although how good administration could be founded on policies and decisions that are unlawful is certainly an interesting conundrum. Take the example of an air quality case: just the sort of systemic issue of national importance that is identified in Clause 22(7) as particularly suitable for the OEP. Let us say that the court hearing an environmental review finds that a public authority has failed to produce legally compliant air quality plans and, to ensure that the law is enforced, wishes to require it to do so. Clause 37(8) would stop it from doing so unless the court was satisfied that no one would be likely to suffer substantial hardship or prejudice as a result. The evidence of one taxi driver who had recently sunk his savings in a non-compliant vehicle would be not only relevant but determinative of the issue, no matter serious the breach of law and no matter how many lives might be saved by a compliant plan. Indeed, even if there were no such evidence, the court could still not grant a remedy without, in effect, proving a negative: that there is nobody out there who could suffer the requisite substantial hardship or prejudice.

Similarly, an unlawful failure to designate a nitrate-vulnerable zone could not be corrected unless the court could be sure that no affected landowner would meet those thresholds. An unlawful permit for an oil refinery would have to stand if the owner had invested on the strength of it, whether in good faith or otherwise. A future judgment that new gas boilers are incompatible with statutory net-zero obligations would be unenforceable too. Irrespective of the benefits, there always would be people with something substantial to lose. In short, the more significant the issue and its environmental impact, and the more it is capable of impacting on private or even administrative interests, the more likely it is that the grant of any remedy will be automatically excluded by this clause.

Of course there will be cases, including some cases decided long after the event, in which a private interest is so strong, and the environmental interest so relatively weak, that a court would be justified in refusing a remedy in respect of unlawful conduct. That is precisely why the grant of remedies by courts of judicial review is, and always has been, discretionary and flexible. Amendment 107 would do no more than replicate that orthodox and unobjectionable position in the context of environmental review. It does not even require the normal remedy of damages to be available. Clause 37(8) places private and bureaucratic interests in the perpetuation of unlawful decisions on one side of the balance, and decrees that even the heaviest public interests will never outweigh them. The twin attributes of justice are her scales and her sword; Clause 37(8) would remove them both. All we ask if that she should be allowed to keep them, so that public authorities can be kept to their legal obligations in this most vital area.

Amendment 108 would give the OEP an alternative to environmental review by opening up a wider range of cases in which the OEP could pursue the established route of judicial review. Clause 38(1) uniquely handicaps the OEP as a claimant in judicial review by requiring it to surmount two extra hurdles of seriousness and urgency—nobody else faces those. By removing at least the second of those hurdles, which was only inserted in the Commons, we would go some way towards redressing the OEP’s disadvantage and putting it on the same footing as any other interested group or individual.

Amendments 105 and 106 address further points on environmental review. The point of 105 is to reduce the scope for procedural game-playing by lawyers. It is the nature of things that unlawful practices may spread, or be repeated, during the course of the OEP investigation that is a precondition for the commencement of environmental review. It is surely sensible that the scope of any environmental review should not be frozen at the time, months or even years earlier, when the investigation began. If later conduct raises the same issues, there should be no obstacle to putting it before the court. I hope the Minister will agree with that, and also that Clause 37(2) is too narrowly drafted for this subject to be adequately dealt with by assurances from the Dispatch Box.

Amendment 106 focuses on the statement of non-compliance, a concept introduced to the law by Clause 37. As the department has accepted in its FAQs, published on Monday, such statements may have reputational or political effects but are not in themselves a legal remedy. So they are not a prize to which the OEP is likely to feel justified in devoting its limited resources. This amendment would remove the most obvious statement of their legal powerlessness—that they do not affect the validity of the conduct in respect of which they are given—but would not, I freely accept, be a substitute for the remedies whose full application would be restored by Amendment 107.

Finally, and in response to a concern I raised at Second Reading and in person, the Minister has been good enough to write in an all-Peers letter that it is the Government’s view that OEP complaints and enforcement functions will not affect the rights of other persons to bring legal challenges against public authorities by way of judicial review. It would be the final irony if the imperfect mechanisms of environmental review were to be advanced in the courts by public authorities as a reason for withholding access to what remains, at least for now, the gold standard of judicial review. I accept that such decisions are ultimately for the courts, but the Government’s view is significant and I would be grateful if the Minister could repeat his assurance from the Dispatch Box so that it appears in the official record.

[Baroness McIntosh of Pickering (Con)]

I am delighted to follow the noble Lord. I support the amendments in this group. I join my noble friend the Minister in congratulating my noble friend Lady Bloomfield on her birthday; I am sure there is nowhere she would rather be celebrating her birthday than with us this afternoon. Her support on the Bill is greatly appreciated.

My starting point is what my noble friend has said on a number of occasions: that we are seeking to achieve a regime whereby we replicate, as closely and as effectively as possible, the regime to which we signed up with the European Union. I go back to Britain in the 1980s, when I was working as an adviser; an A-grade woman, and a woman administrator in the Conservative group in the European Parliament, was quite a thing in those days. Noble Lords may recall—the noble Duke, the Duke of Wellington, recalls only too well—that the United Kingdom had a terrible reputation as the dirty man of Europe, with the dirtiest waters, some of the dirtiest rivers and some of the dirtiest beaches. Many maintain that change came not just by signing up to high-reaching directives, such as the EU water directive—I pay tribute to the Secretaries of State for the Environment at the time—but also the massive investments that water companies made over successive years and, obviously, the sterling efforts of the noble Lord, Lord Anderson of Ipswich, who made sure that he held the water companies’ feet to the fire.

I am concerned that there will be no real teeth. I hate using that word because I went to the dentist recently and it brings back too many memories of that, but I think it is a good word to use. I believe that one reason why the European regime has been so successful in holding water companies, chemical companies and agricultural processes to the fire is because it had very real sanctions. I therefore pay tribute to the noble Baroness, Lady Jones of Moulsecoomb, and the noble Lord, Lord Anderson of Ipswich, for their amendments. Mine, as the noble Baroness said, goes a little further. It says:

“In the event of a severe breach of environmental law, financial penalties may be imposed.”


This echoes a lot of the arguments put forward by the noble Lord, Lord Anderson of Ipswich.

The offending subsections of Clause 37 include subsection (7), which states:

“A statement of non-compliance does not affect the validity of the conduct in respect of which it is given.”


They also include subsection (8) in particular, which goes further:

“Where the court makes a statement of non-compliance it may grant any remedy that could be granted by it on a judicial review other than damages, but only if satisfied that granting the remedy would not … be likely to cause substantial hardship to, or substantially prejudice the rights of, any person other than the authority, or … be detrimental to good administration.”


My noble friend the Minister has to put our minds at rest this afternoon and show that it should not really be just the courts that are left to impose the penalty. If the OEP is to be worth its weight in gold, which I hope it will be, it has to have the power to implement the decisions that have to be taken when holding public bodies to account—it is extending to public authorities for the first time—and would mirror the powers that currently exist under the European Commission, which is the body that we are told the OEP is meant to replicate in fulfilling our environmental sanctions post Brexit.

I am grateful to the Bar Council for its help in preparing my amendment. As I have said before:

“The requirement that the breach be severe to justify a financial penalty is noted. It is assumed that this is to ensure that a financial penalty be the exception rather than the rule”.


So, it should not just be a minor infraction; it should be a major infraction and a severe breach. Also, this is

“in the context that the OEP’s power to apply for an environmental review is already on the condition that it considers the authority’s failure to comply to be serious. To that end, it might be less open for debate as to whether it is severe or serious if the court’s discretion were wider, and therefore based upon all the circumstances of the case, but to be exercised where those circumstances are exceptional.”—[Official Report, 28/6/21; cols. 562-63.]

In making an argument to reject Amendment 107A, my noble friend has to give us the alternative that there will be very real and immediate powers. As I am sure the noble Lord, Lord Anderson, will say, if the OEP were to impose a penalty, it would be more or less instantaneous. Going to court means that there will inevitably be a delay, so the spillage and the damage could take more effect than if we had the OEP imposing the penalty, which is my preferred route. I hope that I will get the support of the House for Amendment 107A.

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[Lord Goldsmith of Richmond Park (Con)]

I thank the noble Lord for his comments. It is absolutely not the case that I or the Government have rejected all the arguments put forward today, or indeed in any of the debates we have had. This is a lengthy process of scrutiny, discussion and debate and, as I have said many times, it is unlikely that a Bill that begins this process will end it in exactly the same form. I am as keen as anyone in this Committee—probably keener than most people in this Committee—to ensure that the Bill is as good and strong as it possibly can be. That is why I am very keen to continue discussions with the noble Lord, Lord Anderson, and many other noble Lords on their areas of expertise.

The environmental review is a bespoke and additional jurisdiction, not a replacement vehicle. This is additional—for the court to hear claims outside the usual time limit for judicial review or statutory review. As I said during my speech, the court retains all available remedies where decisions are challenged by way of judicial review within the existing time limits, including, where appropriate, by the OEP. I hope that addresses the noble Lord’s concern.

[Baroness McIntosh of Pickering (Con)]

Given the strength of feeling in the Committee this afternoon, I hope my noble friend might agree to meet the authors of the amendments before us. I come back to the point that many have referred to from my noble and learned friend Lord Mackay of Clashfern. We are left with the impression that an environmental law is set out before us in the Bill but that a breach of that environmental law does not amount to a breach of the law. That is unsatisfactory.

I also press my noble friend on his comment that rather than have a fine, which would be punitive, it is better to have a compliance effect such as holding the company—it could be a chemical company or a water company—to be in breach through the OEP applying for contempt of court. I am just trying to think how long those proceedings would take after the horse has bolted and the stable door is left open for the damage to carry on. I would still prefer the options in either Amendment 104 or, ideally, Amendment 107A of leaving financial penalties on the table.

[Lord Goldsmith of Richmond Park (Con)]

I thank my noble friend for her comments. I hope I addressed fines and why the prospect of being held in contempt of court is a far greater concern for a Minister than the prospect of the department that Minister belongs to being fined by a Government and the money being recycled through the same Government.

I reiterate that the system we are replacing is not one that can fine those chemical companies or even local authorities—it can deal only directly with member states—so the remit here is far greater than the remit of the system being replaced. I understand that we may have to agree to disagree, but I refer my noble friend to my argument in relation to fines earlier in the discussion.

On her first point, I am of course very happy to have meetings with any number of noble Lords to discuss these issues, as I have throughout this process.

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[Lord Randall of Uxbridge (Con) [V]]

It is always a great pleasure to follow my noble friend Lord Caithness. In many ways, my Amendment 112, which I am speaking to, echoes exactly what his is and in some respects may be regarded as superfluous.

My amendment is a simple one that merely adds the word “soil” to what the natural environment means. As we know, the Bill currently states that

“the ‘natural environment’ means—(a) plants, wild animals and other living organisms, (b) their habitats, (c) land … air and water, and the natural systems, cycles and processes through which they interact”.

As we have just heard so eloquently from my noble friend Lord Caithness, however, it misses out what I—and I am sure many other noble Lords—feel is the very core of our natural environment. Too often soil, which is pivotal to biodiversity and a functioning environment, is considered as an afterthought or as an inert substrate. It needs to be specifically referenced to ensure that targets and set policies are developed and funding applied. The lack of such an approach means that we may not deal with issues such as soil health, which is generally acknowledged to be in pretty poor shape, as we have just heard.

Soil health problems in the UK’s 700-plus soils vary across types, regions, geography and weather. No clear figure exists for the health of the UK’s soils, but a 2020 review estimated that only 30% to 40% of Europe’s soils are healthy. We can be confident that soil degradation is a huge problem across the UK and that urgent action is needed. Average organic matter levels are declining, especially in arable soils. As my noble friend Lord Caithness said, soil was inserted into the Agriculture Act and it is very important that we put it in this Bill too, because it is critical for agriculture, biodiversity and other reasons.

Organic matter is critical to soil health, biodiversity, productivity and carbon storage. UK soils store an estimated 10 billion tonnes of carbon, dwarfing the 0.2 billion tonnes stored in UK vegetation. In 2013, soil carbon loss was estimated to amount to 4% of UK greenhouse gas emissions, higher than for many industrial and energy sources combined. Losses appear highest from peat and arable soils.

Soil erosion remains a critical problem. A 2020 review of studies found that 16% of arable farms had soil erosion so high that it was a threat to future food production. Increases in growing maize is a major problem. A survey of over 3,000 maize-growing sites in south-west England found that 75% of fields could not let rainwater in deeper than the upper soil layers, such that a heavy rainfall could wash the soil away. Sedimentation—linked to soil erosion on land—is a major problem in 5% of UK rivers.

We must not forget that peat soils are widely damaged. Around 8% of deep peat soils in the UK are being wasted, eroding or are bare. Upland peat soils are damaged from nitrogen deposition, overgrazing, drainage and, of course, burning. Lowland peat soils suffer rapid erosion from extraction and pump drainage for cultivation. Cultivated deep peat in the lowland fens, where a third of England’s fresh vegetables are grown, is also rapidly eroding. As peat soils have dried out, the land has sunk, exposing it to flooding from rising sea levels caused by the climate crisis. Many peat topsoils will disappear within decades unless they are rewetted so that peat formation can rapidly build them up again. Soil life has suffered.

Unlike terrestrial and aquatic wildlife, our soil life has not been well monitored. However, we know that many of the chemical actives applied to farm soils negatively affect soil microbial functions and biochemical processes, altering soil communities and diversity. Combined with ploughing, reducing crop diversity, acidification and losses in organic matter—a key source of food—soil life is being impacted. Research suggests that reduced soil life can affect crop growth, development and disease incidence, potentially resulting in a negative cycle of more agrochemicals being needed.

Only today, in a timely contribution, the House of Commons Environmental Audit Select Committee, under the chairmanship of my right honourable friend Philip Dunne, published its report Biodiversity in the UK: Bloom or Bust? The report highlights the importance of soil in its summary, where it states as one of its recommendations:

“We support the recommendations of the Natural Capital Committee that the development of soil indicators should be fast-tracked; that a shadow target for soil health should be established urgently; and that a legally-binding target for soil health ought to be established as soon as monitoring data allows. Healthy soils should be a priority outcome for the Environmental Land Management Schemes, so as to encourage farmers to adopt beneficial agri-environmental practices.”


The simple addition of a word would ensure that soil is properly considered as a priority alongside air, water and biodiversity within environmental plans, and of course by the OEP.

The amendment from my noble friend Lord Caithness is probably superior to mine, but I am not fussed about that. I am rather simple; I just like one word here and there. But, whatever it is, the Government have to take serious note and insert “soil” into the Bill.

Finally, before I metaphorically sit down, I also support Amendment 113, which has yet to be spoken to by my noble friend Lady McIntosh of Pickering. It would ensure that the marine environment is included. I have a slight difficulty on whether it is necessary when talking about marine wildlife to particularly include marine mammals. I think they should be included anyway in the whole general thing, but I will leave that for others to discuss. I hope that we can insert “soil” into this Bill.

[Baroness McIntosh of Pickering (Con)]

I am delighted to follow my noble friend Lord Randall of Uxbridge and I am grateful to him for his support in principle for Amendment 113. I pay huge tribute to his work and his interest in birds—of the feathered variety—whereas I have to confess that water is my element. I thank the noble Lord, Lord Teverson, and the noble Baronesses, Lady Jones of Moulsecoomb and Lady Bennett of Manor Castle, for their support for Amendment 113. I thank the Marine Conservation Society for its support and briefing as well.

Why is Amendment 113 necessary? The Bill at present makes only a passing reference to the marine environment. I wonder why that is the case, particularly as our seas represent over 50% of the environment of England. Anyone who has even a passing interest in the work of David Attenborough on plastics in our seas and oceans will realise how it has captured the public imagination, in this regard.

My noble friend Lord Caithness spoke eloquently on why soil should be included, as did my noble friend Lord Randall of Uxbridge. In his Amendment 113B, my noble friend Lord Caithness goes on to say why

“terrestrial … marine, and … other aquatic ecosystems”

should be included. I believe that Part 1, and indeed the Bill in its entirety, is relevant to the marine environment, and I would welcome the greater clarity of putting “the marine environment” into the Bill, in this regard.

I also acknowledge that, in replying to a Parliamentary Oral Question either a week or 10 days ago, my noble friend Lord Goldsmith acknowledged that there is a “tension”, to use his word, between inshore fisheries and offshore wind farms. So my question to him is: how will that tension be eased and resolved if we do not place, as I have chosen to phrase it here,

“the sea, the marine environment and maritime wildlife, sea mammals, flora and fauna”

on the face of the Bill?

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Moved by

[Baroness McIntosh of Pickering]

113F: Clause 45, page 27, line 14, at end insert—
“(c) has regard to the provisions of the Aarhus Convention (UNECE Convention on Access to Information, Public Participation in Decision Making and Access to Justice in Environmental Matters which entered into force on 30 0ctober 2001).”

[Baroness McIntosh of Pickering (Con)]

I am grateful, my Lords, and I will not test the patience of the House to any great extent.

I have taken the precaution of sharing the briefing I have received from the Bar Council, which has helped me in preparing this amendment, so I hope my noble friend may be able to consider many of the technical details at more leisure than we have this evening. This debate, although not dissimilar, is different from our earlier debate on the group of amendments starting with Amendment 108A. It is really to ask a very simple question of my noble friend as to why previous incarnations of the papers preceding the draft of the Bill indicated that we might be incorporating the Aarhus convention into the Bill. There is disappointment, particularly among legal practitioners, that it is not now included.

I should declare an interest that I studied at the University of Aarhus in Denmark, although not environmental law. I embarked on a thesis looking at anti-trust and competition law in the European Union, particularly joint ventures. That is my unfinished masterpiece, to which I shall no doubt return.

Clause 45(1) limits the definition to “any legislative provision” which

“is mainly concerned with environmental protection, and … is not concerned with an excluded matter.”

The Aarhus convention, despite being concerned with environmental issues, justice and information, obviously does not fall within the term

“mainly concerned with environmental protection”.

So the amendment I have put before the Committee this evening might make better sense if it read as I have set out on the Order Paper, but with allowance at the end for

“any subsequent legislation that supersedes it or incorporates its provisions.”

I will not rehearse all the benefits of the Aarhus Convention, but highlight just one or two. As I mentioned, the Government seemed to indicate that it would be incorporated. There are many reasons to do so. The convention adopts a rights-based approach in its Article 1. It sets out minimum standards to be achieved and prohibits discrimination against persons seeking to exercise their rights under the convention. The main thrust of the obligations contained in the convention is towards public authorities, which strikes a chord, as the Environment Bill is for the first time extending responsibilities to public bodies.

The convention includes institutions of the European Union including, inter alia, the European Commission, the Council and the European Environment Agency, and it sets out access to environmental information, which the noble Lord, Lord Rooker, set out in some detail, so I shall not rehearse that. Finally, in addition to access to justice in environmental matters, I am very taken by the fact that, under the Aarhus convention, the UK is required to complete a national implementation report every three years.

I thank the Bar Council for setting out what is important to sign up to the Aarhus convention. Can I tacitly assume that we are applying the Aarhus convention, otherwise known as the UNECE Convention on Access to Information, Public Participation in Decision Making and Access to Justice in Environmental Matters, which entered into force on 30 October 2001, or can I draw the conclusion that the Government have turned their back and do not intend to apply that convention for the purposes of the Bill? This is intended as a probing amendment to find out the legal status of the Aarhus convention—I am using the Danish pronunciation, obviously—for the purposes of the Bill. When those few words, I look forward to hearing my noble friend’s response.

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[The Deputy Chairman of Committees (Lord Duncan of Springbank) (Con)]

I have received no requests to speak after the Minister, so I move to the mover, the noble Baroness, Lady McIntosh of Pickering.

[Baroness McIntosh of Pickering (Con)]

My Lords, I am extremely grateful to all those who have spoken in the debate, so movingly in the case of the noble Baroness, Lady Bennett of Manor Castle. I welcome the opportunity to have pressed my noble friend in this regard.

I will revert back to practitioners at the Bar Council to ask whether they are completely satisfied with this. From their briefing, my understanding is that there are already similar exclusions in the Aarhus convention. I congratulate my noble friend on his pronunciation. I am extremely impressed and I think we will be speaking Danish together before we even know it. There are similar exclusions to our own freedom of information as exist under the Aarhus convention.

The subsection (2)(a) to which my noble friend referred is a blanket exclusion about which I have some fear. The noble Baroness, Lady Bennett, highlighted that we need to be very clear about what is being excluded. If it is information that could make a life or death change to someone like the parent of Ella, it is very important that we are cognisant of that and try to work within the law as much as possible.

I support both my noble friend Lord Caithness and the noble Baroness, Lady Jones of Whitchurch. I am grateful for her support for the sentiments behind this amendment. When my noble friend Lady Bloomfield and I joined, which was the same year, it was around the time that the procedures here changed. I welcome the fact that in Committee we can have much more probing and lengthier debates, but there was possibly some merit, on a case-by-case basis, to disposing of some of those amendments that could possibly be accepted by the Government or easily disposed of either way, rather than storing up problems when the Government have given us such a tight deadline, as they have. If we can work together and find a middle way on this, that would be very helpful indeed.

With those remarks and the fact that I will go back and take further advice from the Bar Council, I am delighted to have had the debate but beg leave to withdraw the amendment at this stage.

Amendment 113F withdrawn.

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[Baroness McIntosh of Pickering (Con)]

I am delighted to speak briefly on this group and to follow the noble Baroness, Lady Bennett of Manor Castle, who spoke eloquently and forcefully on single-use nappies. Of course, it is not just at the beginning of life that people use nappies; there is the similar and even greater problem of incontinence pads, if we dare call them that, for the third age, so I can see where the noble Baroness is coming from.

If he will permit me, I will congratulate my noble friend Lord Goldsmith and the Government on drafting and including Clause 49 and Schedule 4 in the Bill. I press him on the sentiments behind a number of the amendments, particularly Amendment 119, which was moved by the noble Baroness, Lady Jones of Whitchurch, and which presses for the introduction of a timetable. The explanatory statement says:

“This amendment aims to ensure that the new packaging producer responsibility system is in place for the beginning of 2024, given that the final compliance year of the current package will end on 31 December 2023.”


All who have spoken and will speak in this debate are very concerned about our inability to address producer responsibility. I worked very hard for this during my 10 years as a Member of the European Parliament.

We all seem to pick up on the end of use, and we have all these recycling issues. If you buy perfume or aftershave for a present, you think you are gifting someone what looks like a really nice present, but, when you watch them open it, the contents are of course absolutely tiny, and you think it must be something to do with the marketing of it. Is there some way that we can use the provisions that are set out in the Bill?

What is the government position on labelling? The noble Lord, Lord Teverson, gave a very good example about garments, and I know that there are others that we could use. Has the department done any work on this? I accept the concerns addressed by many, including my noble friend Lord Lucas, who spoke about resource efficiency. Has the department done any costings on this?

In speaking to his Amendment 120 this evening, the noble Lord, Lord Bradshaw, mentioned a concern, which I share and support him on, about wet wipes being put down the toilet, which causes so much cost further down the chain, as we know. We do not need regulations to ask manufacturers to do this; it is a case of education and asking them why they are not doing this in letters that we can all read. So I press my noble friend to say what work has been done on labelling and the education of consumers. We should not let producers slip away from their responsibilities in this regard. I wonder what the cost of such labelling would be—or would we micromanaging and micro-legislating if we were to ask my noble friend to address this?

[Lord Cameron of Dillington (CB) [V]]

My Lords, I support Amendment 120, in the name of the noble Lord, Lord Bradshaw. No one who saw last April’s “Panorama” programme on the state of our rivers could possibly not support this amendment. That picture of what initially looked like a sandbank in the River Thames but was in fact a huge pile of wet wipes and other plastic-fibre sanitary items was simply disgusting to me. I do not think that that is an overreaction on my part.

In evidence given to the Commons’ Environmental Audit Committee, one witness—one assumes that he was an expert and knew what he was talking about—addressed plastic-fibre wet wipes, stating:

“every day 7 million wet wipes ... are flushed ... down the toilet”.

There were also

“2.5 million tampons, 1.5 million sanitary pads and 700,000 panty liners”,

all currently with a varying degree of plastic content. They do not dissolve or break down but, as the noble Lord, Lord Bradshaw, said, have to be raked out of the sewage treatment works and sent to landfill.

The flushing of these products is already illegal. I believe that they can now all be produced without plastic content; in other words, to a “fine to flush” standard. They can now be produced in materials which are equally effective, but which can and do break down within the sewage system, like paper. So I make a plea: the Government should look into this issue and then, I hope, announce a legal end date for the production of all sanitary goods that are not produced to a flushable standard. In the meantime, as Amendment 120 proposes, we should ensure that all the current products are clearly marked as non-flushable.

Environment Bill

Baroness McIntosh of Pickering Excerpts

Committee stage
Monday 28th June 2021 Lords Chamber

[Baroness McIntosh of Pickering (Con)]

I am delighted to speak to this small group of amendments. I shall speak particularly to my Amendment 77A but before I do, I would be interested in probing my noble friend on the relationship between Clause 16, on environmental principles, and Clause 45, on environmental law. I have another amendment asking that we write the Aarhus convention into the Bill, so I am interested in how the principles relate to the law in the context of this ground-breaking Bill.

My second point relates to government Amendments 80, 298 and 299. I hope he will look carefully at Amendment 80A in the name of the noble and learned Lord, Lord Hope of Craighead, and Amendment 81 from the noble Lord, Lord Wigley, as there may be nuances relating to Scotland and Wales that the government amendments should consider.

In speaking to Amendment 77A, I am extremely grateful to the Bar Council for briefing me and bringing to my attention that the phrase “due regard to” is inappropriate here and should, as the amendment says, be replaced by “ensure compliance with”. The background to this is that the concept of “due regard” has come before the courts a number of times, so guidance is available on the exercise of due regard by public authorities. This is in the context of public bodies making decisions—concerning equality legislation, for example—rather than making policy, as proposed in the Bill before us.

I shall give a couple of examples. Lord Dyson’s description of “due regard” in R (Baker) v Secretary of State for Communities and Local Government in 2008 has been paraphrased as

“regard that is appropriate in all the particular circumstances in which the public authority concerned is carrying out its function as a public authority.”

The courts have otherwise considered those circumstances where a public body is required to have regard alone to the policy or government guidance. On the one hand, strength may be given to the terms as set out by the High Court in the case of Royal Mail Group Plc v The Postal Services Commission 2007, in which it was held in the context of a decision under the Postal Services Act 2000 to impose a penalty on the licence holder that must have regard to a policy statement, that:

“The obligation to have regard to the policy recognises that there may be circumstances when it does not have to be applied to the letter but … there must be very good reasons indeed for not applying it.”


There is another example, in the context of planning law, where a similar conclusion may be drawn—the case of Simpson v Edinburgh Corporation.

I submit to the Minister that the requirement in Clause 18 of the Environment Bill is currently for a Minister to

“have due regard to the policy statement on environmental principles”,

not simply the environmental principles, when making policy, not when making decisions. From that follow a number of qualifications to that requirement, based on the significance of any environmental benefit or the proportion or disproportion of environmental benefit from the policy itself.

I argue that the use of the term “have due regard” in Clause 18 creates a potential tension between the Government’s clear entitlement to promulgate policy and to express their policy “in unqualified terms” subject to the

“basic tests of reason and good faith”,

as was argued in SSCLG v West Berkshire, and the rule as applied in Padfield v Minister of Agriculture, which is that a statutory discretion must be deployed to promote the policy and objects of the Act and the significance of having a set of environmental principles enshrined in statute in the first place. To that end, a clearer duty to “ensure compliance with” or “ensure accordance with”, as opposed to “have regard to”, would help to avoid confusion, leave the promulgation of policy open to debate in the courts and give greater recognition to the importance of the principles.

I know that, in the context of previous Bills, we have had cause to discuss the context of “have due regard to”. I am arguing for the importance of leaving the courts with a power to impose a financial penalty, as in this case, upon an unsuccessful body—including, for example, statutory undertakings such as sewerage and water undertakers—which has been found to be in breach of environmental law. It is extremely important that, in the context of what we are asking the OEP to do in the remit of the Bill, it be given real teeth when holding public bodies to account and mirror the pre-existing power, previously exercised by the European Commission and which it is now intended that the body of the OEP should fulfil post Brexit.

The requirement that the breach be severe to justify a financial penalty is noted. It is assumed that this is to ensure that a financial penalty be the exception rather than the rule, but this would also be in the context that the OEP’s power to apply for an environmental review is already on the condition that it considers the authority’s failure to comply to be serious. To that end, it might be less open for debate as to whether it is severe or serious if the court’s discretion were wider, and therefore based upon all the circumstances of the case, but to be exercised where those circumstances are exceptional.

In the circumstances before us, “have due regard to” is not appropriate. I would like to replace it in the Bill with the words: “ensure compliance with”. That would give the OEP greater clarity and, should it be subject to judicial review, it would be easier for the courts to clarify in those circumstances. I hope that my noble friend will look sympathetically on probing Amendment 77A.

[Lord Wigley (PC) [V]]

My Lords, I am delighted as always to follow the noble Baroness, Lady McIntosh, and well understand the points that she has made. I hope that the Minister will listen to them. I support the assertions made by the noble Baroness, Lady Jones, in moving Amendment 73, but my amendments relating to Wales deal with a somewhat different aspect of these policies.

There is a somewhat bizarre linking of issues in the way that they have come together in this debate. We are where we are because of how Clauses 16 to 18 are formulated and the manner in which the Government have tried to ensure that provisions relating to environmental principles do not fall foul of devolved competences in Wales. That is absolutely fair enough but it is far from clear to me, as I suspect it is to the proposers of Amendment 78, what exactly the Government are trying to do. I have tabled Amendments 79 and 81 to try to tease out exactly what their intention is, and I was grateful to the noble Baroness, Lady McIntosh, for highlighting Amendment 81.

As things stand, in making policy that may impact on Wales, the provision is that the Minister must not have due regard to policy statements on environmental principles to the extent that they relate to Wales, whether or not those spheres of environmental policy are devolved. If the Bill has no application whatever to Wales then, as for Scotland and Northern Ireland, Chapter 1 should be excluded from any applicability to Wales. But the Government have insisted on making Chapter 1 applicable in certain circumstances to Wales. On a superficial reading, it would seem that the Government insist that a Westminster Minister will have some powers relating to Wales, although we do not know exactly what they may be. But whatever they are, in applying those policies in Wales, the Minister shall not have regard to environmental principles, though in relation to similar responsibilities in England he will need to have regard to those principles.

The issue of environmental principles is a very important dimension of the Bill and we must be clear about the way in which it applies or does not apply to Wales. It may be that the Minister will look again at the wording of these clauses before Report and, if necessary, bring forward further amendments on the Government’s behalf to clarify the situation. I certainly look forward to hearing his response to this debate.

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[Baroness McIntosh of Pickering (Con)]

My Lords, given all the respect and affection in which I hold him, I am slightly dismayed that my noble friend actually played back at me that “having regard to” worked perfectly well in equalities policy. I actually quoted case law at him. If I may, I would like to submit the case law I have to him so that his legal team can look at it. But I just make a plea: we are about to come on to the office for environmental protection. We are hoping to replicate at national level, throughout the whole of the United Kingdom, very stringent penalties for infringement of environmental policy or principles, such as a chemical spillage or other contamination of water. That is why—I am sure he would agree—we want the fewest referrals possible to any court under a judicial review, we want to be absolutely clear and we need to ensure compliance and have the possibility of financial penalties being imposed, rather than just a very mealy-mouthed “have regard to”.

[Lord Goldsmith of Richmond Park (Con)]

I thank my noble friend. I think she offered to submit other examples in case law, and I look forward to seeing what she has to say. I am also willing, if she is willing to speak to me, to talk details in due course.

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[Lord Hope of Craighead (CB) [V]]

My Lords, I hope I can be heard. Amendment 81A is a probing amendment, for reasons that I hope to explain. Clause 19 provides for the making of statements about Bills containing new environment law before the Bill’s Second Reading. According to paragraph 22 of the Explanatory Notes, these are to be statements setting out “the effect” of the new primary environmental law on existing levels of environmental protection provided for by environmental law, but the wording of the clause does not quite say that. All it requires is a statement by the Minister that the Bill contains a provision which, if enacted, would be environmental law and would not have the effect of reducing the level of protection provided for under existing environmental law, or that the Minister is unable to make that statement. There the matter lies. How great the reduction would be and in what respects, if he or she is unable to make the statement, is another matter, which the clause does not mention or require to be considered.

A requirement of the limited kind that this clause describes seems to be breaking new ground, although something similar is to be found in Section 19 of the Human Rights Act 1998, which requires Ministers to make a statement of compatibility. That provision was seen, when the Human Rights Bill was introduced, to serve three purposes. First, it would have the salutary effect of focusing the Government’s mind on the question of whether the proposed legislation would be compatible with the European Convention on Human Rights. Secondly, it would provide information to Members of Parliament which might be relevant to their debates and discussions. Thirdly, it might affect the judicial interpretation of any legislation that was passed.

The third purpose was soon negatived when the Law Lords sitting in this House made it clear that it was for the courts and not a Minister to say whether the legislation would be compatible with the convention. The second does not seem to have been borne out in practice, as I cannot recall any case where the significance or otherwise of the Minister’s statement has been debated in this House. That may be because it has no legal significance. I hope that the first salutary purpose is still there, and that these statements, which appear without fail in every Bill, are not a mere formality because the matter has been considered.

So the question is: what is the purpose of the requirement in Clause 19? It cannot bind the courts, as it is for them and not the Minister to say whether the provision would be environmental law, should that issue ever arise in legal proceedings. I can see some prospect of its having the salutary effect of requiring the Government to address the question, focused on in Clause 19(3), of whether the level of environmental protection provided by existing environmental law would be reduced. That would be a good thing and very welcome, but do we need a provision in this Bill for that to happen? What would happen if, as it turns out, the statement the Minister made was wrong, if the Bill is amended in a way that might affect what the Minister said or if the Minister is unable to make the statement? The clause does not address these issues at all.

If, on the other hand, the making of a statement of the kind referred to in Clause 19(4) is to provide an opportunity for debate, what purpose would that debate have if the Government nevertheless wish the House to proceed with the Bill and will enforce their wish? The clause does not provide for any kind of sanction or remedy. It can be said that there is some value in drawing the matter to the attention of the House, but does it really add anything to what would be likely to happen anyway when the Bill came under scrutiny?

There is one other point worth mentioning. The phrase “existing environmental law” is defined in Clause 19(8), in relation to a statement under the clause, as meaning

“environmental law existing at the time that the Bill … is introduced into the House”.

However, that definition does not say what it is or where it is to be found. For that purpose, one has to go to Clause 45. The very broad definition that this clause provides is

“any legislative provision … that … is mainly concerned with environmental protection”—

which, for this purpose, includes devolved legislative provisions as well.

This is quite a package. It is unlike Section 19 of the Human Rights Act, where the convention itself and its precisely grouped surrounding case law is the point of reference. Given the extensive legislative background against which the Bill is likely to have been drafted, it may be quite difficult for a Minister to make such a statement with any conviction that everything has been turned over correctly and would stand up to scrutiny. That is why it might be wiser, to avoid any misunderstanding and any potential mishaps due to the difficulty of searching the ever-expanding reach of legislation in this field, to make it clear that the purpose of the clause is limited to what is indicated in my amendment.

In any event, it would be helpful if the Minister were to make it clear, for the assistance of all those to whose functions it is directed, what exactly the purpose is of this clause. I beg to move.

[Baroness McIntosh of Pickering (Con)]

My Lords, I am delighted to support Amendment 81A, which I have co-signed. I support entirely the comments made by the noble and learned Lord, Lord Hope of Craighead, in moving it.

I want to raise a very narrow point with my noble friend the Minister. It relates to the second part of Clause 19(8). Subsection (8) states:

“‘Existing environmental law’, in relation to a statement under this section, means environmental law existing at the time that the Bill to which the statement relates is introduced into the House in question, whether or not the environmental law is in force.”


This posed quite a question at the time of the withdrawal Act and the subsequent statutory instruments on retained EU law, particularly as the water framework directive was being considered and revised. Unfortunately, we had an empty-chair policy at the time, so were not at the council meetings when this was discussed, but it begs the question of which water framework directive, for example, is now enshrined in UK law. Is it the one that we previously agreed to or is it the one that was subsequently revised at the time of our departure from the European Union?

The second and last question that I have for my noble friend the Minister relates to a jolly good read which I commend to him: the 22nd and final report of the European Union Committee, Beyond Brexit: Food, Environment, Energy and Health. It was adopted by the European Union Sub-Committee, on which I was privileged to serve. In paragraph 148, the report sets out that the trade and co-operation agreement

“negotiated by the Government will affect the policy choices available to devolved administrations and legislatures in areas of devolved competence including the environment.”

That perhaps relates more to the previous amendment, Amendment 80A, but also to the amendment before us now.

The report goes on:

“There are already diverging environment and climate change goals across the UK, which could indicate challenges ahead. We urge the Government to address any concerns raised by the devolved administrations regarding the TCA’s environment and climate change provisions—via the Common Frameworks programme or other routes—as fully and promptly as possible.”


Scotland has now set up its equivalent to the office for environmental protection, the name of which escapes me completely—I think it is Environment Services Scotland—so it has an operation that is already up and running. We will not have ours in place until July. Have any issues already arisen in this regard, as we are slightly later in our programme than we would have hoped to be? Also, have any of these issues been identified and raised under the common frameworks programme? That is in addition to my earlier question about, for example, the water framework directive.

With those few remarks, I am delighted to lend my support to Amendment 81A.

[The Deputy Chairman of Committees (Baroness McIntosh of Hudnall) (Lab)]

My Lords, I understood that the noble Baroness, Lady Bennett, had withdrawn from this debate—but she is shaking her head at me, so I assume that she wishes to speak. I think I should make it clear that her name is listed as having withdrawn; however, I will call her now.

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[Baroness Boycott (CB)]

It is a great pleasure to follow my noble friend Lord Cameron. Like him, I am very much a “cross”-Bencher in this case. I have been looking through the Second Reading document and would say that there are many cross Lords, all across this Chamber and wherever they are beaming in from, who also completely agree with what he says about the necessary independence of the OEP.

It is extremely chilling to read Defra’s power under Clause 24 to issue guidance on how the OEP should behave and what it should do. At the end of the day, it is the department for the environment but also agriculture and food. Those two areas make up such a massive part of the climate change agenda, how we use our land and how we will reclaim our biodiversity for the future of this whole country. The thought that advice on the levels of control should be given in that department seems quite absurd but also very sinister. Either this is really cowardly or it is an agenda that wants to conceal.

My noble friend Lord Cameron pointed out various cases in which big fines have been able to be issued. Will the Government really be able to fine themselves for transgressions relating to chemicals, the use of neonicotinoids and all the things the EU can cope with at the moment?

Earlier this afternoon I spoke about the grubbing up of trees at the barracks near Grantham. When the Minister answered us, he said that neither he nor his colleagues wanted to see any of these grubbed up. I have used the intervening time to look up the remit of Homes England. This is what its website says—it is such a good quote:

“We’re the government’s housing accelerator. We have the appetite, influence, expertise and resources to drive positive market change.”


If you scroll down to look at what it is responsible for and its priorities, there is not one mention of the word “environment”, climate change or care and attention to how we live. I wonder how this will work out if a case is brought by those children—by Callum McLelland, the 15 year-old who planted a tree when he was seven. If he decides to bring a case, will Defra say, “We don’t want this case”?

I also point out that, like my noble friend Lord Cameron, I do not doubt for a second the authenticity and sincerity of the current holders of the office, both in this Chamber and in the other place. I know they mean what they say and do their best, but this is statute that has to stand for ever. It will probably stand when we are all dead.

For instance, I would like to bring to noble Lords’ attention the situation with the recent Australian trade deal. As I understand it, Defra did not approve of it, but it was overridden by the department for trade. We will accept animals into this country such as sheep that have been subjected to the practice of mulesing. If any noble Lords do not know what that is, it is the process of ripping the skin off a lamb’s backside so that it forms scar tissue and then is not vulnerable to flies. The department for trade won.

Government is complicated and messy. There are lobbyists, and a lot of money is being thrown around. The Tory council of Horsham, where Knepp is threatened by 3,500 houses—this was in the Sunday Times eight days ago—has received £600,000 from these developers. There is much going on like this. We need an agency that can stand up to it, act quickly and with independence and that does not have to run to the Minister and say, “Is it okay if I do it?” Please support my noble friend Lord Cameron’s excellent amendment.

[Baroness McIntosh of Pickering (Con)]

I am delighted to support and speak to the amendments in this group. As we are considering in detail a number of amendments relating to both the independence of the OEP and its budget, resources and staffing, I will keep my comments on this group limited to parliamentary oversight and scrutiny.

The noble Lord, Lord Cameron, and I served together on the EU Environment Sub-Committee, and I think he is the sole survivor of that committee to now be on the Environment and Climate Change Committee. He carries the candle for us all in that regard. I am grateful to him for tabling these amendments and agree entirely that we were promised oversight as near as possible equivalent to and as effective as that which pertained through our membership of the European Union, and that my right honourable friend Michael Gove, in the other place, said that it would be inappropriate for Defra to be in charge in the way that, it has now become apparent, it will be.

On balance, I prefer the amendment in the name of the noble Baroness, Lady Jones of Whitchurch, supported by the noble Baroness, Lady Young of Old Scone, which would ensure that appointments would not be made without the consent of the Environment, Food and Rural Affairs Committee and the Environmental Audit Committee. On a number of occasions during my tenure as chair of the EFRA Committee, we conducted pre-appointment hearings. I do not know whether there was a pre-appointment hearing in this case, but we know that Dame Glenys Stacey is now in place. My first question to my noble friend is: was there such a pre-appointment hearing? Was it carried out by one, the other or both of those committees? I think I am right in saying that Amendment 85 breaks new ground in suggesting that the other non-executive members of the OEP would also face a pre-appointment hearing. I do not know whether that has ever happened before.

The reason why the amendments are so welcome, particularly Amendment 85, is that it gives us the opportunity to ask my noble friend to set out precisely what the parliamentary oversight of the OEP will be. I argue very forcefully not just for a pre-appointment hearing by the two committees in the other place but for opportunities to have the chair of the OEP, Dame Glenys Stacey, in annually for a full review of its work.

It is important to ask my noble friend one last question. When we were preparing the report to which I referred earlier, Beyond Brexit: Food, Environment, Energy and Health, the Secretary of State told the EU sub-committee—he is quoted at paragraph 162 of the report—the following:

“It is important to note that the chair of the OEP, Dame Glenys Stacey, has already been appointed and is in post … It is already able to receive complaints. Until it has its full legal powers, there is a limit to what it can do to act on those complaints. If the European Union wanted to have dialogue with the OEP for the purposes of that part of the agreement, which really is only about cooperating and sharing, there would be nothing to prevent that from happening in this early stage.”


I would go further and press my noble friend to ensure that there is an obligation, particularly in the early stages while the OEP is being set up and finding its feet, to have regular contacts with the European Commission to find out its exact approach. It may take a different view, but it would be helpful to have at least some background in this regard. It is my certain understanding that Environmental Standards Scotland has already had such contact. It would be highly regressive and retrograde if the OEP, representing England, did not replicate that.

I am also concerned—I hope my noble friend will put my mind at rest—that it should not be in any shape or form admissible or possible for the Secretary of State for Environment, Food and Rural Affairs to lean on the independent chair of the OEP and suggest that she not take up a complaint, were she minded to do so. According to my current understanding of the OEP’s composition and independence, the situation in that regard is by no means certain. I commend these amendments, and in particular I have great sympathy with Amendment 85.

[Baroness Jones of Moulsecoomb (GP)]

My Lords, the noble Lord, Lord Cameron of Dillington, introduced his amendments extremely well. There is not much I can add except to say that it is widely recognised across the House that the office for environmental protection is not currently fit for purpose—it is too weak and easily ignored. It is therefore pretty much a done deal that your Lordships’ House will amend this Bill to strengthen the OEP. I hope that when we do, we can come up with the strongest possible options.

The OEP needs status as well, which the noble Lord, Lord Cameron, pointed out. The amendments would give it that status and, more importantly, they would help to ensure the independence of the office, establishing the commissioner by letters patent from the head of state, which would prevent the Government meddling. That is the sort of level of ambition that we should be setting for our environmental watchdog. Parliament is also the proper place for the OEP to be accountable to. The point made by the noble Baroness, Lady McIntosh, about exactly how that will happen was quite useful.

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Moved by

[Baroness McIntosh of Pickering]

89: Schedule 1, page 130, line 36, at end insert—
“(7) A person is to be considered unable or unfit to carry out the member’s functions under sub-paragraph (6) if the Secretary of State is satisfied as regards any of the following matters—(a) that he member has becomes insolvent;(b) that he member has been convicted of a criminal offence;(c) that the member is otherwise unable or unfit to discharge the functions of a member or is unsuitable to continue as a member.”Member’s explanatory statement
The effect of this amendment is to define the meaning of “unable or unfit” in Schedule 1, sub-paragraph 5(6).

[Baroness McIntosh of Pickering (Con)]

My Lords, I am delighted to move Amendment 89 and speak to Amendment 90. I am grateful to the noble Lord, Lord Bruce of Bennachie, for his support. I also thank the Law Society of Scotland for suggesting that this was worthy of probing by way of an amendment at this stage. It follows on from the little debate we have just had.

As my noble friend the Minister said in summing up the last group of amendments—and as Schedule 1 very clearly sets out—the appointment of a chief executive is to be by non-executive members of the OEP and the other executive members are to be appointed by the OEP. There are regrettably, and unusually, a couple of typos in the amendment on the Marshalled List. Clearly, it should not state that “he member” but “the member” has become insolvent or has been convicted of a criminal offence. I just mention that in the rare event that the Committee might want to adopt the two amendments, which—I hasten to add—I do not intend to press at this stage.

I have tabled these two amendments to introduce a definition for being unable or unfit to remain a member. This would give greater legal certainty as to the circumstances in which a person may be removed from office as a non-executive member of the OEP. As present, the Bill does not provide further detail as to the basis for determining whether a member is unable or unfit to carry out their functions. The amendment specifies that this would be the case when a member becomes insolvent or has been convicted of a criminal offence. The amendment is intended to bring greater specificity to the provisions of the Bill while still providing sufficiently wide scope to take account of other circumstances where the individual is otherwise unable or unfit to discharge the functions of a member or is unsuitable to continue as a member. I understand that there are similar appointee-removal processes in relation to other bodies, such as the Scottish Police Services Authority, set up under the Police, Public Order and Criminal Justice (Scotland) Act 2006, and the Scottish Legal Complaints Commission, set up under the Legal Profession and Legal Aid (Scotland) Act 2007.

On Amendment 90, where prior notice should be given for the removal of such a person, it is intended that the Secretary of State would consult with the chair of the OEP in this regard. This would impose a duty, which I understand is currently not in the Bill, on the Secretary of State to consult with the chair of the OEP prior to giving notice to remove a non-executive member from office. The reason for this is that the consultation provides for an additional layer of scrutiny; the requirement for the Secretary of State to consult with the chair of the OEP will help to ensure openness and transparency regarding the Secretary of State’s actions.

Does any procedure exist that I am not currently aware of whereby such a person deemed unfit can be disqualified from holding office in these arrangements? What procedure is intended other than what I have set out in Amendments 89 and 90? With those few words, I beg to move.

[The Deputy Chairman of Committees (Baroness McIntosh of Hudnall) (Lab)]

My Lords, I had thought that the noble Baroness, Lady Jones of Moulsecoomb, intended to speak, but she is not in her place. The noble Duke, the Duke of Wellington, has withdrawn, so I call the next speaker, the noble Viscount, Lord Trenchard.

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[Lord Goldsmith of Richmond Park (Con)]

I hope I went some way at least towards reassuring noble Lords about the robust process for appointing the chair, board members and non-executive directors of the OEP earlier. I would like to provide additional assurance in relation to Amendments 89 and 90 from my noble friend Lady McIntosh of Pickering.

We have carefully designed the OEP for it to effectively deliver its functions in England and over reserved matters. We have designed the appointment and removal processes of OEP members to retain the right balance between ministerial accountability and operational independence. Should it become apparent that a non-executive member of the OEP were unable or unfit to carry out their duties as a member of the OEP board, we would expect this important development to be a subject of significant discussion between the Secretary of State and the OEP chair. As such, it is not necessary to prescribe this on the face of the Bill.

Additionally, in answer to the noble Baroness, Lady Hayman, Schedule 1 already sets out the grounds for the removal of a non-executive board member in the unlikely event of them being unable or unfit to carry out their functions. Greater detail on these matters is better dealt with in the terms of appointment for individual non-executive members rather than on the face of the Bill. Should the Secretary of State act disproportionately in the termination of a non-executive member, they will be held to account and scrutinised by Parliament.

I hope that this reassures my noble friend, and I beg her to withdraw the amendments.

[Baroness McIntosh of Pickering (Con)]

My Lords, I am very grateful for the opportunity to have this little debate and to all those who have contributed. Obviously, I am disappointed that I was not clear enough for my noble friend Lord Trenchard, but I am delighted that, in some way, the noble Lord, Lord Bruce of Bennachie, addressed his concerns ably and effectively. The noble Baroness, Lady Hayman of Ullock, put it very well by saying that there is a need for greater clarity, and it was a professional body—the Law Society of Scotland—that first proposed these amendments.

I take my noble friend’s point that this level of detail was perhaps never intended to be on the face of the Bill, but it would be interesting to know what sort of template there was and, for example, how “disproportionately” would be considered. Clearly, common sense will dictate what disqualifies one from office. Because of some historic misdemeanour that is not of any great consequence, it would be unfortunate to lose a person who would be a good member of the board.

I am grateful to have had the opportunity to raise this, and I am grateful to my noble friend for putting my mind at rest in summing up. I beg leave to withdraw my amendment.

Amendment 89 withdrawn.

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Moved by

[Baroness McIntosh of Pickering]

92: Schedule 1, page 132, line 41, at end insert—
“(3) The OEP must as soon as practicable prepare a budget for the following five financial years, and then a budget every five financial years thereafter.(4) The OEP must—(a) arrange for the budget to be laid before Parliament, and(b) publish it.(5) The budget must—(a) include—(i) an estimate as respects resource requirements;(ii) the proposed amount of funding required; (b) be accompanied by information as to the OEP’s projected work plan for the next five financial years.(6) The OEP may revise the budget at any time (and sub-paragraph (4) applies to any revised budget).(7) Before preparing or revising the budget, the OEP must consult the Secretary of State and such persons as it considers appropriate.Member’s explanatory statement
This amendment has the effect of introducing a requirement for the OEP to prepare a five-year budget which is subject to consultation.

[Baroness McIntosh of Pickering (Con)]

My Lords, I am grateful again to have the opportunity to press and probe my noble friend further on the matter of the OEP’s budget. I have followed his advice and read the relevant paragraphs in Schedule 1, which is the relevant schedule here. I would just like to make the case for why I believe that a requirement to prepare a five-year budget, which is subject to consultation and review, is needed.

We spoke earlier of what level of parliamentary scrutiny there would be, and it would be opportune, perhaps when there is an annual hearing of the two Select Committees—the Environmental Audit Committee and the EFRA Committee—to take evidence from the chairman of the OEP. But if there was a five-year rolling budget, there would be much more meat on the bones, and it would show what direction, focus and priorities the OEP was going to have.

The reason that this is such a key part of the Bill, and why I seek to probe through Amendment 92—which Amendment 93, in the names of the noble Baronesses, Lady Jones of Whitchurch and Lady Young of Old Scone, is not dissimilar to—is that, if the OEP is going to do its job effectively, it needs to be properly funded to carry out its role. I remember the arguments that we put passionately and consistently through the course of the Trade Bill, as it then was, that the Trade and Agriculture Commission should have a proper budget, be properly resourced and have an office and staff independent of the department. Where the Bill says that

“The Secretary of State must pay to the OEP such sums as the Secretary of State considers are reasonably sufficient”,


each of us would have a view as to what “reasonably sufficient” might be.

On the need for a wider budget, I know that research grants—for example, in other aspects of agriculture—run for some three years, and after the end of the first and second years, the whole of the next year is spent wondering whether the same level of budget will be available. I believe that a five-year period is ideal, as it is neither too short nor too long. It will help to ensure that the resource requirements are adequately met with sufficient advance notice and that the proposed funding is clearly identified and published as we go through each five-year period. It can only help Defra when we come, such as in this year, to the strategic spending review, to know precisely what the commitments will be.

The purpose of Amendment 92 is to ensure that there will be a five-year budget that is subject to consultation, and it will go some way to ensuring that the OEP is sufficiently funded and resourced to carry out the work that we all hope it will do. I beg to move.

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[Lord Goldsmith of Richmond Park (Con)]

My Lords, I very much hope so. I thank my noble friend Lady McIntosh and the noble Baroness, Lady Jones of Whitchurch, for tabling Amendments 92 and 93. I agree, of course, that it is important for the OEP to have certainty regarding its level of funding on a multi-annual basis That is why the Government have committed to providing a multi-annual indicative budget for the OEP, ring-fenced within each spending review period. For transparency, the OEP’s budget will also be given a separate line in Defra’s supply estimate, which will be laid before Parliament to allow for parliamentary scrutiny. This is, nevertheless, an administrative matter, so it is not appropriate to put it on the face of the Bill.

There is also a need to retain flexibility, both initially in light of delays to the Bill due to the Covid-19 pandemic, and should the process for allocating public body budgets ever be reformed at a future date. It is worth pointing out that other bodies with multi-annual funding commitments—the Office for Budget Responsibility, for example—do not have this set out in legislation. The Bill does provide several safeguards on OEP funding. These include a duty on the Secretary of State to fund the OEP sufficiently; in conjunction, the OEP will provide an annual assessment to Parliament of whether it has received sufficient funding. In answer to the noble Baroness, Lady Parminter, the OEP has been given £8 million for its interim stage for this business year.

I hope that this reassures noble Lords and ask them to withdraw the amendment.

[Baroness McIntosh of Pickering (Con)]

I am grateful to all who have spoken, and I am particularly grateful to the noble Lord, Lord Bruce of Bennachie, for lending his support in co-signing the amendment.

I entirely agree with the noble Lord, Lord Rooker; if you look at paragraph 12 of Schedule 1, it really is not very forthcoming. It just talks about paying

“such sums as the Secretary of State considers … reasonably sufficient to enable the OEP to carry out its functions”,

and then talks of

“subject to such conditions as the Secretary of State may determine”

if there is further assistance by way of grants or loans. I say to the noble Lord, Lord Khan, that both amendments deal with a potential revision; I think the difference in Amendment 93 is if any additional funds are required. To a certain extent, I think that is already addressed in the schedule.

The noble Lord, Lord Bruce of Bennachie, is right that we need to equip the OEP to be in a position to respond rapidly to what we are asking it to do. I am not in a position to say whether £8 million seems low. It does not seem particularly high for its first year, but it depends on whether it is for half a year, assuming that the organisation really only comes into swing properly on 1 July, this week. Perhaps my noble friend could confirm whether it is six, nine or 12 months—I think we are going to have a penalty fine for anybody whose mobile phone goes off in the Chamber, as that one has just done.

The noble Baroness, Lady Ritchie, is absolutely right. I am grateful that my noble friend confirmed that it is an indicative budget, but we do need greater clarity to enable the OEP to do its work, for all the reasons that the noble Lord, Lord Krebs, gave about how out of kilter the Natural England budget is. Obviously, that has not been a blow to Tony Juniper in making these points, because he has gone from strength to strength. I do not think people should be shy of criticising the funding—not the Government themselves—where that is due.

The noble Lord, Lord Cameron of Dillington, said, both in this debate and the previous one, that it is not just the OEP and Natural England that are being kept short of funds. What worries me very much is the fact that the Environment Agency is on the record as saying that it does not have sufficient funds to inspect the rivers. If we are not inspecting the rivers, how is the OEP going to impose the penalties that we wish it to?

I believe this has been a very useful debate. We might want to consider how to address this, if it is necessary, going forward. However, for the moment, I beg leave to withdraw the amendment.

Amendment 92 withdrawn.

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Noble Lords may think that I am suspicious or unduly paranoid, but I wonder whether Clause 24 is a continuing manifestation of the Government’s reluctance to create a truly independent office for environmental protection. I hope that I am incorrect in my suspicions and worries, and I look forward to the Minister’s explanation of why the clause is necessary. I beg to move.

[Baroness McIntosh of Pickering (Con)]

My Lords, continuing the theme of great minds thinking alike, apparently the requests for a clause stand part debate landed at exactly the same moment and there was the equivalent of tossing a coin to see whose name would appear. I am delighted to support the clause stand part debate and to go a little further in my Amendment 100.

My question to my noble friend at the outset is this: does he not accept that, for the OEP to do all that I am sure he, the Government and all of us would wish it to do, it must be seen to be independent, not just of the Government but of other organisations, such as Natural England and, to a certain extent, the Environment Agency? I am still not entirely clear what the relationship of the OEP and the Environment Agency and these other bodies will be. The question I keep asking, to which I hope one day to get an answer, is this: to who would a farmer, whether a landowner, a tenant or an owner-occupier, go to seek advice? Would it be Natural England, the Environment Agency or the OEP? That is not entirely clear.

I could never be cross with my noble friend, so I would not like to be described as a cross Back-Bencher, but I find it inappropriate that Clause 24 appears in the terms that it does. It is discretionary. It simply states that:

“The Secretary of State may issue guidance to the OEP on the matters listed in section 22(6) (OEP’s enforcement policy).”


It then goes on:

“The OEP must have regard to the guidance in … preparing its enforcement policy, and … exercising its enforcement functions.”


This reverts to the point I made earlier, when I set out my concern that it might be the case that a Secretary of State—or, heaven forfend, a junior Minister—might lean on members of the OEP to ensure that a particular enforcement does not go ahead. That would be utterly inappropriate. It then goes on to say that

“The Secretary of State may revise the guidance at any time”


but

“must lay before Parliament, and publish, the guidance (and any revised guidance).”

I am not quite sure which body would be scrutinising that in that situation. Later, it sets out the OEP’s enforcement functions.

At this point, I just say that I do not believe there is a place for Clause 24 in the Bill, and I look forward to some very strong justification or proposed changes that my noble friend might make when he sums up this little debate.

Just before I address my Amendment 100, I want to support the amendments in this group in the name of the noble Baroness, Lady Ritchie of Downpatrick. They also go to the heart of parliamentary scrutiny, which we discussed a little earlier. I endorse those amendments; they are entirely appropriate.

Amendment 100 would go a little further than just leaving out Clause 24 and would insert a new clause specifically stating that

“In performing its functions, the OEP is not subject to the direction or control of the Secretary of State or any member of Her Majesty’s Government.”


I cannot put it in any stronger terms than that it would be entirely inappropriate for that to happen. This debate is a good opportunity to cast beyond doubt the independence of the OEP, not just, as I said, from government but in its dealing with other bodies which have a role to play in the environment. We want to give it the greatest authority we possibly can. I would argue that we leave out Clause 24 but insert my wording in Amendment 100.

[Baroness Ritchie of Downpatrick (Non-Afl) [V]]

My Lords, it is a delight to follow the noble Baroness, Lady McIntosh of Pickering. I support the amendments in this group and wish to speak in particular to the amendments in my name: Amendments 117 and 118, relating to Northern Ireland.

Schedule 3 makes provision for the functions of the office of environmental protection in its activities in Northern Ireland. Along with many organisations, including Greener UK, I support the inclusion of Northern Ireland within the remit of the office of environmental protection. These provisions are broadly parallel to those in Part 1 and Schedule 1 that relate to England. I raised this specific point during Second Reading, some three weeks ago.

Extensive regulatory dysfunction and unacceptable levels of disregard for environmental law have resulted in substantial degradation of the environment in Northern Ireland, with significant economic and social costs. The independence of the OEP in Northern Ireland is therefore vital. The lack of an independent environmental regulator, despite the fact that it was first recommended in 1992 by a House of Commons Environment Select Committee report—nothing has ever happened in that regard—has meant historically weak environmental governance, which means that the OEP must have a cast-iron constitution and culture of independence from the outset. The need for independent oversight is exemplified in the case of designated sites, such as protected sites. In some cases, it is quite dismal in our areas of special scientific interest and areas of outstanding natural beauty.

In this context I have a concern about a broad power for DAERA, the department in Northern Ireland, to issue guidance to the OEP that it must have regard to when preparing its enforcement policy or exercising its enforcement functions in Northern Ireland. This will affect the OEP’s ability to perform its role independently and does not take sufficient account of the particular political circumstances and context of Northern Ireland, including the mandatory power-sharing nature of the Northern Ireland Executive—hence Amendment 117.

There is concern about the timetable for appointing the Northern Ireland member of the OEP board. There must be no further delay in appointing that member, and the appointment process should be progressed as quickly as possible. I hope the Minister will pursue that with his equivalent colleague in the Northern Ireland Executive.

Those problems concerning the guidance power for DAERA should be removed from the Bill, and Amendment 117 would do that. There are three particular areas of concern. In line with the Ministerial Code, cross-cutting and controversial matters must be brought to the Northern Ireland Executive—and guidance from the DAERA Minister to the OEP on its enforcement policy and functions would qualify as both cross-cutting and controversial. Therefore, what is the procedure for bringing this guidance to the Executive before it is issued by DAERA? As a former Minister in the Northern Ireland Executive, about 13 years ago, I knew what that meant, but I just want to clarify that.

Secondly, ministerial appointments in Northern Ireland are managed through the d’Hondt system, under which the largest parties are allocated multiple departments. What mechanisms will be put in place to minimise the risk that a current or future DAERA Minister could use the guidance power to advise the OEP in relation to enforcement or potential non-compliance on environmental law relating to either a department of a similar affiliation or one allocated to an opposing party? Given its wide scope and the lack of transparency in how it will be prepared, the guidance could in theory be used for political benefit—a risk that does not appear to be considered by Defra or DAERA in designing this power.

As a public authority, the Northern Ireland Environment Agency will fall within the remit of the OEP. If DAERA exercised its power to issue guidance in relation to enforcement matters involving the Northern Ireland Environment Agency, that would further cloud Northern Ireland’s already difficult environmental governance and could result in blurred areas of accountability.

Amendment 118 would require the appointment of the Northern Ireland board to be made with the consent of the Committee for Agriculture, Environment and Rural Affairs of the Northern Ireland Assembly. To engender the greatest level of stakeholder trust and buy-in to the OEP, Northern Ireland must be—and must be perceived to be—embedded within it from the start. The appointment of a dedicated Northern Ireland board member will help ensure that Northern Ireland’s nuances, including geopolitical, biogeographic and societal, are properly accounted for in the OEP’s policies and activities. It will also establish trust and credibility.

In this context, can the Minister ask DAERA to clarify the timescale for the appointment process? I note that the first interim board meeting of the OEP is expected to be held this Thursday, 1 July.

Environment Bill

Baroness McIntosh of Pickering Excerpts

Committee stage
Wednesday 23rd June 2021 Lords Chamber

[The Earl of Caithness (Con)]

My Lords, I start by repeating something I said in the first day of Committee. This is a hangover from Monday, but the batting order is not satisfactory, because I want to speak to Amendment 28 and none of its proposers has spoken yet, so I cannot follow them. However, I am delighted to see the noble Baroness, Lady Boycott, in her place and hope she can come in after the Minister, because few in this House know as much about the problem as she does.

The noble Baroness, Lady Bakewell, covered the problem comprehensively. I was going to raise the point raised by the noble Baroness, Lady Scott of Needham Market, which is that we must take this opportunity not only to reduce the amount of plastic, but to curb the problem of plastic litter, which is spoiling the countryside in a way it never has before. This is particularly apparent with Covid and the pressures now on farmers, landowners and councils, because of the total disregard that a lot of people have for the countryside. They are happy just to dump their rubbish anywhere. This Bill must be used for that.

I would like to say a lot more about Amendment 28. I like that it does not attack all plastics, as they can be the right solution for the right good in the right place, but they are not great overall. We must find a way to reduce and recycle them better.

[Baroness McIntosh of Pickering (Con)]

I am delighted to follow my noble friend. Like him, I think it unfortunate that we have not heard from those who have tabled Amendment 28. These three amendments have much to commend them. I also pay tribute to the work of the Government and, in particular, my noble friend Lord Goldsmith, who first took an interest in this in the Quality of Life group’s report, Blueprint for a Green Economy, which he co-authored with my noble friend Lord Deben. I am pleased to see that his messianic zeal continues to this day.

--- Later in debate ---

[The Earl of Caithness (Con)]

My Lords, I agree with the earlier speakers that this part of the Bill needs to be strengthened. I should say to my noble friend Lord Goldsmith with regard to the amendment of the noble Lord, Lord Chidgey, why just chalk streams? I know how vital they are but any river will tell you about the environment of that area and its quality within the river.

I have a little bit of good news for my noble friend on the Front Bench. I recently spent three days in Dorset and, driving back, I had to wash the windscreen of my car to get rid of the bugs. It is the first time in many years when I have had to do that. If bugs are getting on to windscreens, it means that something is turning around slowly in nature. It is a good start and I hope that we will all be doing what I had to do on a much more regular basis. I agree that it is desperately boring to do, but it is far better to be bored doing it than not to have nature.

Virtually all land in the UK is managed. There is very little, if any, truly wild land left. When we are considering biodiversity, we must not forget that the land also has to produce food for the population. I again ask my noble friend on the Front Bench the question I asked at Second Reading, or possibly on the first day of Committee—I cannot remember. Does he agree with the figure that 21% of our agricultural land has to be taken out of agriculture and put into bioenergy fuels and trees? If that is the case, it means a 10% increase in the productivity of all the other agricultural land. That will mean a lot of intensification but it can be done if we do that cleverly with supporting biodiversity.

Here I want to talk about something that has almost become a dirty word: management—land management and biodiversity management. We could improve the biodiversity in this country very quickly if we followed the simple rules of getting the right habitat, the right species protection, proper winter feeding and control of predators. That is the four-legged chair on which biodiversity depends. I know that the Agriculture Act will address some of that but it will not necessarily address winter feed and certainly not predator control. The winter feed situation has been hugely compromised by the increasingly efficient agricultural machinery that farmers use and the height at which crops can be cut, leaving little for wildlife.

I mentioned foxes and badgers earlier. It was in that context that I felt that my noble friend the Minister had not answered my questions. What will the Government do to ensure that there is proper predator control carried out in a humane way? I am not talking about the extinction of species but getting a balance. If we are going to get back lapwing, curlew and waders, predators will have to be controlled. It is not just a question of foxes and badgers but deer. They have ruined hedgerows for ground-nesting birds and nightjars, and decimated some trees. In an increasingly urban southern half of England, deer control is becoming a major problem to undertake but if we do not do so we will affect wildlife in a hugely different way. It is not just a matter of our actions as human beings but of nature working within nature.

I know there are certain things over which we have no control, such as climate change. It is bound to affect our biodiversity in ways we do not know. As the noble Lord, Lord Chidgey, will know, warmer winters and cooler summers are affecting salmon migration and its appearance in rivers. It is to be hoped that we will do something about that in long term, but it is not a short-term problem that we can solve. Nor can we solve the problem the north winds this spring have caused the bat population—that is not strictly within our hands. My friend, the noble Lord, Lord Krebs, talked about the blue butterfly, which is weather-dependent. We have seen a huge increase in the red admiral thanks to a slightly warmer climate, but the other side of that equation is that we have lost a whole lot of butterflies because of the change in the climate. I wonder whether the blue butterfly that the noble Lord mentioned will suffer in the future.

In this debate, on getting an abundance target and improving biodiversity, I hope my noble friend will tell us about the practical problems that organisations are trying to solve. These organisations, such as the Game & Wildlife Conservation Trust and the Nature Friendly Farming Network, are doing huge amounts. They will need some more help and some more drive from the Government as well. Rather than just setting targets, it is the practicalities on the ground that matter.

[Baroness McIntosh of Pickering (Con)]

I am delighted to follow my noble friend Lord Caithness. I congratulate my noble friend the Minister on bringing forward government Amendment 22 and all the amendments in this group. I hope he is not too disheartened by the reaction around the Committee this afternoon. Really, the Government have taken the bull by the horns.

I congratulate the noble Lord, Lord Chidgey, on his industriousness in all the positions he holds. No wonder we do not see too much of him here in the Chamber, but I congratulate him on all his work, at every level of democracy, which he outlined today. I am delighted that he talked about the plight of chalk streams, which I was heavily involved in at one stage in the other place. The noble Lord, Lord Chidgey, highlighted—indeed, it is a theme of the briefing I was delighted to receive from the Green Alliance—that this is not a problem unique to this country. My noble friend the Minister outlined this when he moved and spoke to the amendments before us this evening. It is not so much that this is a new problem as that we need new solutions to be adopted, but I urge my noble friend to be slightly cautious if we go out on our own limb, as it were, and set very ambitious targets. Is it not the case that we are not the only Government who did not achieve the 20 Aichi biodiversity targets agreed in Japan in 2010? Surely, if we are concerned about being a global leader and about biodiversity in the wider world, he should use his good offices and those of his colleagues in government to ensure that other Governments follow our lead. I was slightly disappointed that my noble friend Lord Randall did not touch on that aspect and took, perhaps, a uniquely domestic approach in the words he used.

My noble friend has set an ambitious target in the amendments in this group. How achievable is meeting those targets by 2030? Obviously, it is something we have signed up to internationally, so I would be interested to know how realistic and achievable those targets are. It is welcome that they will be subject—as I understood him to say—to the same legally binding targets elsewhere in the Bill. Will he use the species abundance provisions set out in these amendments to ensure that there will be timely and regular reviews of all the species, however the Government is going to define them? I am wondering whether we have actually defined these anywhere in the Bill, and I would be grateful if my noble friend would point to where those definitions are.

We all have our favourite species. Mine is the red squirrel, and one of the joys of visiting Denmark each summer is seeing how widespread it still is in parts of Scandinavia and elsewhere. I believe that hedgehogs are under increasing threat; I frequently lift one up and move it from the drive so that it does not make its way on to the main road, where I know that, a few days later, I will see that it is no more. Will my noble friend use this opportunity to look at all our favourite species—I would argue for red squirrels and hedgehogs—and make sure that, where they have been threatened but are now in abundance, we take cognisance of that? I think particularly of the protections that we gave to badgers in 1968. Should these now be reviewed, in 2021, along with those for all species of bats and newts?

I was taken by the arguments made by noble friend Lord Caithness about achieving a balance. He is absolutely correct, and I support him in this, that we should recognise predators such as deer. I hope that the green lobby will bear with me and that I do not get attacked like I did when I said this before: we have to recognise that TB is spread through predators such as badgers and deer and protect our herds of domestic cattle from that. I hope my noble friend the Minister will take cognisance of that balance. This may be in one of the amendments and I have missed it, but I would welcome his commitment to a review of each species, perhaps every five years, being considered. However, I support the amendments in the name of my noble friend.

[Lord Curry of Kirkharle (CB) [V]]

My Lords, I restate my interests: I chair the Cawood group, which carries out analytical testing of soil, water, waste et cetera; and I am a trustee of Clinton Devon Estates, which is involved in ELMS trials and testing. I fully support the Bill and am enthusiastic about its potential. As has been stated numerous times, it needs to sit in sync with the Agriculture Act and I will comment on that later. I absolutely understand the need for the suite of amendments tabled by the Minister, beginning with Amendment 22.

There is clearly a need to have appropriate targets; otherwise there is a serious risk of not being able to measure success. As I said earlier in the debate, it is important to have a clear sense of direction to motivate all involved in delivery. I listened carefully to the Minister’s response, in an earlier debate, on why soil quality is not included as a target in the Bill. I have to say that it was not very convincing. If the determinants are still a work in progress, the Government should commit to introducing soil when these have been resolved. The setting of targets is, potentially, one of the most controversial parts of the Bill, as is clear from interest in the topic and comments so far. I will issue a cautionary note, so far as the farming sector is concerned. My old farming business participated in stewardship schemes for about 30 years before I retired two years ago; it was one of the first to enrol in stewardship management. We did halt decline in some species and saw a revival in others.

Modern agricultural practices encouraged by the common agricultural policy and, to be clear, by successive Governments in the UK, to produce cheap food—particularly the move from spring to autumn cropping during the 1970s and 1980s—have had an influence on species loss. Farmers have been following government policies and have been subsidised to produce cheap food for the past 70 years, which is why the Government have an obligation to adequately support family farms through the transition period, as outlined in the Agriculture Act, over the next seven years. The Government also need to incentivise those same farmers to deliver measures within the ELMS to address species loss and help deliver the targets that will be set as a consequence of the Bill. This is where the two pieces of legislation need to be absolutely compatible. I stress again that the Government have an obligation and these family farms are vital to the management of the countryside. They are crucial in delivering economic and social sustainability, as well as environmental sustainability and the outcomes that the Government hope to achieve through the Bill.

I am sure that the Minister will reassure the House that the Government intend to support farmers through the ELMS, but everything depends on the values attached to public goods, including the measures required to deliver biodiversity gain, which are as yet unknown. Establishing the value needs careful consideration. Even though farmers have been pilloried in the past by the environmental lobby as the culprits for ruining the environment in the pursuit of cheap food, in my experience, the vast majority of farmers care deeply about their environmental responsibilities and want to see well-functioning ecosystems.

Environment Bill

Baroness McIntosh of Pickering Excerpts

Committee stage
Monday 21st June 2021 Lords Chamber

Then there is the requirement for the Prime Minister to declare a climate and ecological emergency. Why has he not done so already? Perhaps the Minister can tell us. Quite honestly, this must happen before COP 26. It is impossible for the United Kingdom to give any type of leadership at COP 26 without this declaration. It should form the very foundation of COP and be the basis for negotiations there. Without properly diagnosing the issue, we will never agree on the solutions and actions that the world must adopt. I support these amendments wholeheartedly.

[Baroness McIntosh of Pickering (Con)]

I am delighted to follow the noble Baroness. I welcome this group of amendments, which are excellent as probing amendments. The voice of business is missing in the Bill, in particular the voice of farmers and landowners, and indeed water companies, which have a real role to play here. I regret also that there is a missed opportunity in the Bill, which is very ambitious on certain levels but has some spectacular omissions at other levels, in that the interaction between this Bill and the Agriculture Act and the Trade Act could have been spelled out more, both at Second Reading and as we proceed now with the more cohesive infrastructure.

I congratulate my noble friend Lord Lindsay and my noble friend—if I may call him that—Lord Teverson, under whose chairmanship my noble friend Lord Cormack and I have the honour to serve on the EU Environment Sub-Committee. I also congratulate Cornwall on so successfully hosting what seemed to be in its own right a successful G7 meeting. Had the meeting been held over the past few days, perhaps it would not have been quite so visually attractive. I am sure that Cornwall will go on to benefit from that, as Yorkshire has from the Tour de France and the Tour de Yorkshire that we held in previous years and which we hope to repeat this year.

I invite my noble friend the Minister, not just when he sums up today but as we go through the Bill, to rise to the challenge that has been laid down by my noble friend Lord Lindsay in particular. There are two specific areas my noble friend Lord Caithness has identified where businesses have a role to play. Farmers stand prepared to play their part in tackling climate change; you need only look at the websites of the farming organisations—the Tenant Farmers Association, the NFU and the CLA—in this regard. However, as my noble friend Lord Caithness identified, all the action the Government seem to be proposing, in planting huge numbers of trees, improving soil quality and many other factors, will be of great benefit to the landowners who own the land, but I struggle to see what the benefit will be for tenant farmers. Looking at the future of upland farming, I think that up to 48% of farms in North Yorkshire alone are tenanted farms, which is a very high proportion. It distinguishes England from other parts of Europe, which do not have this background. I am struggling to see how tenant farmers in particular will benefit under the Bill.

The Government are looking to encourage older farmers to retire, but where they will live is a separate question that needs to be addressed. Smaller houses are simply not being built; smaller properties of one or two bedrooms are not available to allow those who are retiring to either rent or own them. It is not just the starter homes but the step-down homes as well. The other area where I believe farmers, landowners and water companies have a real role to play—we will look at this in later amendments—is flood prevention. Again, this area could be explored more fully in this regard.

My noble friend Lord Lindsay and the noble Lord, Lord Teverson, have done the House a great service in enabling us to debate this small group of amendments this afternoon and I look forward very much to hearing my noble friend on the Front Bench tell us more about ELMS, flood prevention and other schemes under the Bill where he expects businesses, particularly farming businesses and water companies, might benefit.

[Lord Moynihan (Con)]

My Lords, I declare my interests as set out in the register. I will speak to Amendment 1 in the name of my noble friend Lord Lindsay—a subject on which I, the noble Lord, Lord Addington, and other noble Lords from across the House have spoken many times in this place.

The specific context of my remarks is the proposal by my noble friend Lord Lindsay to insert a new clause specifically to achieve and maintain

“an environment that supports human health and wellbeing for everyone”.

We emerge from Covid with a nation where obesity and mental health concerns among an unfit and often inactive population, particularly among the young, are a major national concern. The decision by the Government, and the Department of Health in particular, to tackle these challenges on a cross-departmental basis, with the impending establishment of the office for health promotion, is as much about prioritising health and educational opportunities as we build back better and level up as it is about access to the countryside and to an environment that supports human health and well-being for everyone.

In days gone by, the order of priority tended to be: sport, recreation and an active lifestyle. Today, policymakers and the public at large seek to reverse that order. An active lifestyle, recreation and sport are the priorities. Such an approach focuses on well-being, both physical and mental—well-being to be supported, I suggest, by a well-being budget with responsibility for drawing all the cross-departmental strands together. This Bill, and in particular my noble friend’s amendment, sets the environmental objectives in this context, which can play a key part in establishing an important element of the legislative framework capable of delivering these objectives.

For an active lifestyle, human health and well-being and the environment are inextricably linked. They are dependent on their environmental contexts and are potentially environmentally impactful in their own right. Sport and recreational facilities, if inadequately planned—such as ski hills, golf courses and stadia, and even some pathways—can upset ecosystems and displace local residents. Here my noble friend Lord Caithness is absolutely right: there must be appropriate safeguards, with access matched by responsibility. As he said, this equation must be got right.

In this context, access to nature has never been more important. Countless studies confirm the health and well-being benefits of being active and connecting with the outdoors. The Covid-19 pandemic makes the case only more compelling. As we recover from the worst of the pandemic, the Environment Bill, with my noble friend’s amendment, establishes a strategic approach to the provision of public access so that support is targeted where it is most needed, ensuring that more people can benefit from the experience of connecting with nature.

It is with that in mind that the Ramblers, Sustrans, British Canoeing, the British Mountaineering Council and the Open Spaces Society, among many others, see that there is much to welcome in the Bill. However, it could be strengthened by my noble friend’s amendment, not least in the requirements in the Bill, which are already welcome, for the Government to set legally binding long-term targets and to develop long-term plans in relation to the key priority areas.

However, without amendments such as my noble friend’s, the Bill will fail to afford equal priority to access to and enjoyment of the natural environment. It enables, rather than requires, the Government to set targets and develop plans for improvements in this area. Therefore there is a disconnect between the Bill and the Government’s own 25 year-old environment plan—or rather the 25-year environment plan; sadly, it is not yet that old—which includes a policy aim to ensure that the natural environment can be used by everyone. Already, the consequences of the lower priority afforded to access are becoming clear; emerging policy from Defra for target-setting is silent on the way the department intends to improve access in future.

In conclusion, I believe that the amendment moved by my noble friend Lord Lindsay could provide for and strengthen the framework needed for these commitments, by strengthening access to nature. As my noble friend Lord Cormack has said, this Bill will guide policy-making for years to come. I support the proposals to establish a framework of legally binding and long-term targets and plans to drive improvements in environmental quality, not least because the state of the natural environment is encouraging people to get outdoors; that is critical. However, the Bill must be strengthened so that connecting people to nature is afforded equal priority and integrated into the wider plans for environmental improvement. For that reason, above all, I support the amendment moved by my noble friend.

--- Later in debate ---

[The Duke of Wellington (CB) [V]]

My Lords, this amendment in my name—and I thank the noble Baroness, Lady Altmann, for adding her name to it—has one simple purpose. I wish to persuade the excellent Ministers—in this House the noble Lord, Lord Goldsmith, and in the other place Rebecca Pow—to acknowledge as a priority the importance of cleaning the rivers of this country. The Government have repeatedly stated that this generation should be the first to leave the environment in a better state than that in which we inherited it. This vision has almost unanimous support, I am sure, in both Houses of Parliament and in the country as a whole. The main target is, of course, to reach a state of net-zero carbon emissions by 2050, and I understand why this is the overarching ingredient in policy-making.

There is so much in the Bill which I support. In Clause 1(2), the Secretary of State must set long-term targets in respect of air quality, water, biodiversity and waste reduction. Part 5 is devoted to water, and contains clauses on resource management, drought planning, and drainage and sewerage management. Since the Bill arrived in this House, the Government have tabled their own amendments on sewerage management, which I welcome but will attempt to strengthen through amendments later in the Bill. But Chapter 1, which we are debating today, is entitled “Improving the natural environment”, with the subheading “Environmental targets.” My proposal is that the Government set a target for improving the natural environment of our rivers.

I am grateful to the Minister for a meeting last week with a number of Peers, mainly from the Cross Benches. From that meeting, I understand that there is doubt about the appropriateness of the European standard of good ecological status, in which case I suggest to Ministers that they establish a new United Kingdom standard and have a target for progressive percentages of rivers to reach that target in five years, in 10 years, and finally for 100% of rivers to reach that target in 15 years. Ministers have stated that they want to be ambitious, to set high standards and to lead the world by example. That being the case, we must not allow untreated sewage to be discharged into our rivers over 400,000 times or for more than 3 million hours during 2020, as reported by the Environment Agency.

I read again the highlights of the 25-year environment plan published by the Government in 2018. Although “clean and plentiful water” is listed among the environmental benefits to be achieved, there is no specific reference to the elimination of the shocking level of sewage discharges. That is my point: while we strive as a nation to reduce carbon emissions to zero, improve biodiversity and clean the air we breathe, we cannot continue to accept that raw sewage is discharged into rivers, harming all aquatic wildlife and imperilling the health of human beings who swim in or enjoy the rivers.

I fear that the apparent unwillingness of the Government to make this a priority is the great cost involved in converting our drainage and sewerage infrastructure. In other parts of the Bill there will be an opportunity to debate how this could or should be paid for. I do not believe that most members of the public are aware that, in the 21st century in a developed country such as ours, raw sewage is still being discharged into rivers every day. I think most people would expect the Government, in their new Environment Bill, to make it a priority not just to reduce but to eliminate these discharges. That is the purpose of my amendment and I beg to move.

[Baroness McIntosh of Pickering (Con)]

My Lords, I am delighted to support the noble Duke, the Duke of Wellington, in his amendment. On the face of it, this does seem an omission, given that clauses from Clause 83 onwards deal specifically with water quality, yet it does not appear as a specific target.

I declare my interests in the register and that I co-chair the All-Party Water Group. I worked for five years with the water regulator for Scotland—WICS, the Water Industry Commission for Scotland—and I have co-authored two reports on bricks and water which deal with water issues specifically in relation to housing. I am also vice-president of ADA, the Association of Drainage Authorities. Drainage boards have a specific role to play, being responsible for ensuring that lower-lying watercourses of below either eight metres or eight feet—I cannot remember which—flow as smoothly as they should.

Amendment 4 is commendable, and I congratulate my noble friend the Duke of Wellington on bringing it forward. Of course we should aim to have the best water quality, and to ensure that we have clean rivers, that—where possible—farmers can farm less intensively, and that we meet the highest domestic and international water quality standards, as well as seeking to improve our soils. As the noble Baroness, Lady Jones of Moulsecoomb, said, we must have a level playing field to ensure that we are not just improving watercourses in this country but ensuring that products grown on less regulated land and soil do not have a free pass to come into this country through trade agreements.

I would like to address one issue that my noble friend the Duke of Wellington referred to—untreated raw sewage being spilled into our watercourses. I would like to pose the question: why is that happening? It is happening because water companies are being placed in an impossible position. They are obliged to connect to major and smaller developments—to provide clean water and to collect wastewater and sewage coming out. We increasingly see that water companies are obliged to connect, even when they are placed in a situation where they may not be deemed able to do so.

I draw attention to the fact that we are seeing increasing amounts of surface water. This is a relatively recent phenomenon; it was identified for the first time in any significant way in 2007. I am drawing on the experience of Sir Michael Pitt, who was asked by the then Labour Government to write a very comprehensive review of how we should adapt to this new form of surface water flooding. Many of his recommendations have been implemented but many have not.

Subsequently, I am tabling amendments which will address the specific point of raw sewage. One way of dealing with it is to end the automatic right to connect to major new developments. This was called for by Sir Michael Pitt. It will address the specific problem of sewage outflow, particularly where combined sewers overflow and cause a public health issue in many cases—where the sewage overflow goes into existing developments and those residents have to leave. I believe we have asked too much of water companies, without giving them the wherewithal to address this, either through the quinquennial price review, or by allowing them to do whatever they choose to connect—sometimes against their better judgment—to major developments.

A way of addressing that is to ensure that water companies are given the same statutory right to consultation as has now been extended to the Environment Agency. Since the Environment Agency has been granted that right, we have seen the number of houses prone to flooding that are being built significantly reduce. Similarly, I hope we can see that water companies are not placed in an impossible position when it comes to major and significant new housing developments, particularly where they may be built on functional flood plains or land prone to flooding in the shorter term.

I entirely endorse the comments and remarks of the noble Duke, the Duke of Wellington, in moving this amendment about the importance of maintenance. We have to differentiate between the maintenance of major and minor watercourses, ensure that local authorities have the budget and resources to do the maintenance they are required to do and that the Environment Agency oversees it. I pay tribute to the work of those local drainage boards and landowners who are often responsible for doing the regular and very necessary maintenance on minor watercourses.

This might seem a small amendment but it is very significant, and I hope my noble friend the Minister will look favourably on it, and on the later amendments we will consider in due course. I support Amendment 4.

[Baroness Altmann (Con) [V]]

My Lords, I shall speak to Amendment 4, so ably moved by the noble Duke, the Duke of Wellington, and congratulate him on the work he has been doing on this important issue. I do not have significant amounts to add, but I believe that, as my noble friend the Minister said, this is a chance to radically improve environmental policy. In particular, the areas outlined in the Bill, such as air quality and water per se, could be enhanced by adding the specific requirement to take account of improvements urgently needed to water quality.

The Government have already said that they proposed to publish a plan by September 2020 to reduce sewage discharges into our rivers and waterways. I am obviously supportive of that and of placing a duty on water companies to publish annual data on storm overflows and set legally binding targets for water quality. However, it is likely that those issues will be dealt with in a more long-term timeframe than one might have hoped, given this landmark Bill.

--- Later in debate ---

[The Earl of Caithness (Con)]

My Lords, I agree with the noble Lord, Lord Rooker, and my noble friend Lord Cormack that legislation has to be precise and intelligible. If we are to take the public with us, which we need to on a Bill as complicated and as detailed as this one, it has to resonate with them, so there is a lot to be said for what my noble friend Lord Blencathra has suggested in his amendment.

However, I am slightly troubled on a couple of fronts. In answering the debate at Second Reading, my noble friend the Minister said:

“As for my noble friend Lord Blencathra’s proposal to change ‘biodiversity’ to ‘nature’, he makes an important point, but the trouble is that those two terms are not exactly the same”.—[Official Report, 7/6/21; col. 1308.]


He then gave an example about the dreaded Sitka spruce, but he did not tell us why they were not the same and what the implications were for the Bill if we were to go down the route suggested by noble friend Lord Blencathra of half the time using “nature” and half the time using “biodiversity” depending on where it is in the Bill. When he said that, I was immediately sceptical, thinking, “Here comes a lawyers’ charter. If we’re using ‘biodiversity’ in one part of the Bill and ‘nature’ in another, the lawyers are going to have a field day”. I wish my noble and learned friend Lord Mackay of Clashfern were joining in this debate, because he would help us.

I go instead to the noble and learned Lord, Lord Hope of Craighead, who analysed this matter in some detail and came down in favour of “biodiversity”. I am sitting back on the fence where I started, because I was persuaded one way and the legal opinion has pushed me back in the other. I want to hear from my noble friend the Minister what the difference is between biodiversity and nature. If we could get that difference, perhaps we could reconcile it so that we got a Bill that was intelligible.

[Baroness McIntosh of Pickering (Con)]

My Lords, I am delighted to participate in this debate. I congratulate my noble friend Lord Blencathra on being so industrious in coming up with such an imaginative way to put forward something that he obviously feels very passionate about. However, I support my noble friend the Minister, who I hope will go on to explain why we have settled on “biodiversity”. I support everything said by the noble and learned Lord, Lord Hope of Craighead, about why “biodiversity” has a specific meaning. We should also look at the history of “biodiversity”. There are a number of international conventions with which I am sure my noble friend Lord Blencathra, particularly wearing his hat with Natural England, will be familiar. Is he proposing that we now try to change all the international conventions which originally referred, even more confusingly, to “biological diversity”? I would put forward “biodiversity” as a compromise between “biological diversity” and “nature” or “the natural environment”, because it has a specific meaning and we have subscribed to a number of international conventions. For those who will have to follow what is asked of them, “biodiversity” has that specific meaning, which I am sure my noble friend will explain.

I support the noble and learned Lord, Lord Hope of Craighead, in saying that we need a list of species or a better understanding of what is being asked. I am sure my noble friend will explain that when he moves the series of government amendments later today. I accept “biodiversity” as a compromise, but we need greater clarification of the list of species—flora and fauna—which are to be protected.

[Baroness Ritchie of Downpatrick (Non-Afl) [V]]

My Lords, I listened to the noble Lord, Lord Blencathra, with a degree of sympathy for what he is trying to achieve. We all want to make legislation more simple and able to be understood by members of the public, but in this instance, I agree with the noble and learned Lord, Lord Hope of Craighead, and the noble Baroness, Lady McIntosh of Pickering. To change the name in the legislation at this stage would cause a level of disruption, because we already have international agreements that refer to “biodiversity”. The Dasgupta report also referred to it.

There is a simple difference between nature and biodiversity. According to my dictionary definition, nature covers all existing systems created at the same time as the earth, whereas biodiversity is the part of nature that is alive, born on a mineral substrate in an earlier geodiversity. Biodiversity provides numerous ecosystem services that are crucial to human well-being at present and in the future. Longer-term changes in climate affect the viability and health of ecosystems, influencing shifts in the distribution of plants, pathogens, animals and even human settlements. Biodiversity loss has negative effects on several aspects of human well-being, such as food security, vulnerability to natural disasters, energy security and access to clean water and raw materials. It also affects human health, social relations and freedom of choice.

Quite simply, through this legislation, we need to protect our living biodiversity. The inclusion of a target-setting framework is a welcome part of the Bill, and something that has already been referred to by the noble and learned Lord, Lord Hope of Craighead. The long-term nature of environmental matters makes this all particularly important. Environmental improvement cannot be achieved over the short timeframe of a political cycle. We need to ensure that this Environment Bill provides an opportunity for the UK to become a world leader in the fight against all forms of pollution and biodiversity loss and in mitigating the impact of the climate emergency. The litmus test for all of us in the Lords is does changing “biodiversity” to “nature” in this Bill strengthen and toughen its provisions, does it weaken existing legal protections or does it make any difference?

I believe this Bill must turn the tide on nature’s decline, biodiversity decline and the climate emergency. It must transform the way we manage waste, protect our precious water resources and all the other aspects. So, I think at this late stage, it is best to keep to the term “biodiversity”, while I fully understand and appreciate the case made by the noble Lord, Lord Blencathra.

--- Later in debate ---

[The Earl of Caithness (Con)]

My Lords, it is difficult to speak to an amendment that has not yet been spoken to by its proposer. I therefore ask my noble friend on the Front Bench whether she could make a note of this; we had exactly the same problem during the passage of the Agriculture Bill, which we finally got sorted out. The speakers’ lists should start off with all those who have amendments consequential to the first amendment. I want to speak to Amendment 11, in the name of the noble Baroness, Lady Bennett of Manor Castle, but she will speak after me. This is nonsense and it does not help the Committee—I am very glad to see some nods around the Chamber from all sides. I therefore hope that my noble friend will make certain that we get a decent speakers’ list in future.

I support what I believe the noble Baroness will say on Amendment 11, just as she supported me on my Amendment 111, which also refers to soil, so we are as one. Soil is critical to the environment. You cannot get good habitats without proper soil. Unless soil is one of the priorities, we will never get there in the first place. There is a lot more to be said about soil later, but at this stage I just want to support the noble Baroness in her amendment.

On the amendments spoken to by the noble and right reverend Lord, Lord Harries of Pentregarth, he raises some very important points but this also shows the difficulty of having targets, particularly where you have plants and species that can be affected by disease and climate change. It will be very difficult to set a target for tree health, because it can change in a matter of years, as the noble and right reverend Lord said about the ash disease. If you set a target and then have to change it, targets become increasingly meaningless. If we are to have targets, they should have a meaning. I am therefore sceptical. I understand what he is trying to do and part of me supports it, but part of me says that it has to work on the ground—we cannot just tick a box and say that we have done targets, and then keep on changing them. We changed the biodiversity 2020 targets because nobody was going to meet them. It brings the whole concept of targets into disrepute.

The noble and right reverend Lord also mentioned the tree-planting target. I have said before that it is not just tree planting that matters but the maintenance of trees. It is terribly easy to plant trees; I planted lots of trees in the year before I went to agricultural college and I hope that some of them have been clear felled by now—they should have been. However, it is disease and animal destruction of trees, and the planting up after the planting and the support for those trees to grow into mature trees, that really matter. I would rather plant fewer trees and get them all up to maturity than plant x plus 10% when 20% will die, as we end up with a minus quantity. The thrust of the noble and right reverend Lord’s amendment is in the right direction, but again, it is about how it will work in practice; it is the practicalities of the Bill that will make it a success or not.

[Baroness McIntosh of Pickering (Con)]

I welcome this small group of amendments. I will speak in particular to Amendment 6 in the name of the noble Lord, Lord Teverson. He has been very kind in supporting my later amendment along the same lines, Amendment 113. I say to my noble friend the Minister that I find it extraordinary that we have this omission whereby the marine environment, marine mammals, marine flora and marine fauna are excluded from the remit of the Bill. In responding to a question at Oral Questions last week, my noble friend the Minister accepted:

“In relation to the sustainability of inshore fisheries, there is undoubtedly a tension between those activities and new wind farms”.—[Official Report, 16/6/21; col. 1886.]


If we are not going to embrace and try to resolve those tensions in the context of this Bill, what mechanism will we use?

I commend the noble Lord, Lord Teverson, on the evidence we took in the EU Environment Sub-Committee on the ecology of the North Sea. It enabled us to look in some depth at the cumulative impact, as I think it is called, of these rather regrettable tendencies that are building up. It was referred to as the “urbanisation” of the seas, particularly the North Sea, with this plethora of new offshore wind farms growing up in a very short period of time without any concept or research being done—we will debate that later—on what the impact will be on the other uses of that part of the North Sea, such as inshore fisheries, which I just referred to, and shipping.

Nor has research been done on the impact on marine mammals both in the construction phase, with the noise and pollution that will inevitably be caused by a major event such as the construction of an offshore wind farm, and in its operation. I find it overwhelming that there has been no research as to why we are seeing dolphins, whales and other marine mammals banking on our shores with increased regularity—even in the River Thames most recently. I am sure that it has something to do with the sonic boom sent out by these offshore wind farms. It is a constant murmur on the seabed, which must be a distraction and cause some pain to marine mammals. I hope that my noble friend the Minister will look favourably on the amendment of the noble Lord, Lord Teverson, and that it will be added to—or else some very good reasons must be given as to why there is no recognition in the Bill of the maritime area and the contents of marine ecology.

Like other noble Lords, I support a number of other amendments in this group. Soil quality is extremely important; we will hear about that in a moment. I always offer a word of caution to those like the noble and right reverend Lord, Lord Harries of Pentregarth, who is looking to increase the planting of new trees. We must be extremely careful and approach where these trees are going to be planted very cautiously. I personally would like to see the creation of more peat bogs. It gives us a sense of the concept of time when we appreciate that it takes 200 years to create a peat bog, but I understand that the effects can also be replicated through the building of mini-dams and bunds, which should also be looked favourably upon.

For the reasons I have rehearsed before, my hesitation about encouraging the planting of new trees—they do have a role to play, as we have seen with the Slowing the Flow at Pickering pilot project on flood prevention and alleviation—is that, if grown in the wrong places, trees can actually contribute to flooding. That is a reason to be cautious. Also, only landowners and not tenant farmers can benefit from the planting of trees in any commercial way; they will therefore not benefit from this.

I hope that the noble Baroness, Lady Jones of Moulsecoomb, realises that I hold her in the greatest respect and affection, but I part company with her on this attack on livestock farmers who face all sorts of onslaughts at the moment, including from the Government’s live transport provisions both domestically in this country and externally. I am sure that she and I can have a little private chat offline and reach some agreement on her amendment. This is an interesting group of amendments looking at all sorts of ways in which we can benefit, but I particularly lend my support to Amendment 6.

Fishing Industry

Baroness McIntosh of Pickering Excerpts

Wednesday 16th June 2021 Lords Chamber

[Lord Goldsmith of Richmond Park (Con)]

My Lords, I do not believe that is the case. Catch limits, known as total allowable catches, have been set for 70 fish stocks at the EU-UK annual negotiations, and the total value of the UK-EU fishing opportunities for the UK in this year is approximately £330 million. This equates to around 160,000 tonnes. In real terms, the access we have across the whole of the United Kingdom has grown, not shrunk.

[Baroness McIntosh of Pickering (Con)]

My Lords, the inshore fisheries sector could do well to have an increased quota from just the sort of overseas trawlers’ quota that is now available. Will my noble friend endeavour to keep that under review, and will he ensure that the sustainability of inshore fisheries will not be threatened by the plethora of offshore wind farms to be placed in the North Sea?

[Lord Goldsmith of Richmond Park (Con)]

I will certainly convey my noble friend’s message to my colleagues in Defra, who I am certain will be willing and able to make that commitment. In relation to the sustainability of inshore fisheries, there is undoubtedly a tension between those activities and new wind farms, but Defra colleagues are confident that those tensions can be ironed out and problems can be avoided.

Environment Bill: Royal Assent

Baroness McIntosh of Pickering Excerpts

Thursday 10th June 2021 Lords Chamber

[Lord Goldsmith of Richmond Park (Con)]

My Lords, as the noble Lord says, we have seen significant declines in biodiversity in recent decades. For a target to be successful, there needs to be a strong element of bench- marking, and that will be a feature of the measures we bring in.

[Baroness McIntosh of Pickering (Con)]

Given the priority that the Government have given this Bill and the fact that most of the detail will be in regulations, will my noble friend commit to publishing the regulations as the Bill is going through, so we have a better idea of the detail and can scrutinise it as we go along?

[Lord Goldsmith of Richmond Park (Con)]

My Lords, I do not think I am in a position to make that commitment, but I will certainly commit to ensuring that the House is presented with as much information as is possible during the passage of the Bill in order that noble Lords can make informed decisions.

Environment Bill

Baroness McIntosh of Pickering Excerpts

2nd reading
Monday 7th June 2021 Lords Chamber

[Baroness McIntosh of Pickering (Con)]

My Lords, I am delighted to speak in this debate but, more especially, to follow the right reverend Prelate. As we joined the House more or less at the same time, I have watched with admiration his excellent contributions and the leadership he has shown. I speak as a member of the Rural Affairs Group of the Church of England.

Once again, today the right reverend Prelate has set out the key aspects of concern in the Bill, not just to those of faith but to all noble Lords and to the general public, while identifying its spiritual elements too. I would add in passing that I think all owe a debt of gratitude to his leadership and pastoral care in the dreadful incidents of poisoning in his diocese. Before that, he served with great distinction as vicar of St Martin-in-the-Fields from 1995 to 2011. I am sure that those there will be forever grateful. I pay tribute to his work at that time in the restoration project, where he initiated and led a £36 million buildings renewal project, which will be a lasting legacy of his tireless work. The House of Lords has benefited from his wise counsel and his championing of nature and the environment. We all wish him every possible future happiness and hope that he will continue the good fight for nature and the environment.

I refer to my other interests as listed in the register. Also, I am vice-president of the Association of Drainage Authorities, co-chair of the APPG on water, and had the privilege of chairing the Environment Committee in the other place.

The Bill before us this afternoon is ambitious in some respects but has some surprising omissions. I would like to focus on farming, flooding and the marine environment. The link to the Agriculture Bill and especially the environmental land management scheme is obviously crucial to the Bill before us today. Farmers will no longer be encouraged to produce food but will have to compete for limited funds with other green activities. I ask my noble friend to consider, in summing up today, what the implications of the Bill will be for tenant farmers and smallholdings, being mindful of the fact that tenant farmers account for over 40% of the total in areas such as North Yorkshire and many other rural parts of the country. I invite him also to consider the implications for hill farming, which is heavily dependent on livestock production—farmers are guardians of the countryside—and improving food security and self-sufficiency in food production as well as sustainable farming.

There are inevitably implications for food affordability and potentially food poverty. The Bill represents a fundamental change to farming since the CAP was originally created. It begs the question: to what extent will the concept of natural capital be developed so that the Government reward people for owning and working the assets of the countryside, as well as for taking the economic risk, which should also be recognised? What regard will be had to the criteria used in the Health and Harmony White Paper, including landscape, rural development and tourism, as well as the implications of the planning Bill, which so many other noble Lords have identified during the debate? Will it be possible to use the public good concept to encourage natural flood defences such as Pickering’s Slowing the Flow project, and sustainable drainage? I urge my noble friend and the Government to be realistic, however, about growing trees, doing so only where it is appropriate. In short, there is no one-size-fits-all solution for the natural environment and biodiversity game.

Is my noble friend aware that there are certain implications of the Reservoirs Acts 1968 and 1975, especially the de minimis rule, that may prevent the temporary storage of floodwater on farmland, and which may be considered under the Bill? There are many issues arising in respect of surface water flooding, addressed in the lead-up to the Pitt review of 2007, but in many instances these are still not resolved. I highlight one: the ending of the automatic right to connect to major new housing developments, which could and should so easily be addressed through this Bill. It is important that we understand what the role and status of environmental improvement plans will be, to which I would also add the greater use of catchment management schemes.

I entirely endorse what the noble Lord, Lord Anderson of Ipswich, said about the need for the OEP to be independent in order to uphold environmental standards and to have proper rights of enforcement. I had the privilege to practise alongside Eleanor Sharpston, who served with great distinction both in the Belmont European Community Law Office, where we practised, and as the last Advocate-General serving for this country.

The Government need to explain what the relationship will be between the OEP in England and that in Scotland and the other devolved nations. Surely, the guidance in Clause 24 smacks potentially of micromanaging what the work of the OEP should be. Why has the marine environment not been included? I also ask my noble friend to consider the impact on the environment of wind farms, including the cumulative effect of both their operation and their construction. How will these multifarious new wind farms operate alongside other users of these seas, such as fisheries and shipping? There is a lack of research on these impacts, which needs to be addressed.

I refer in passing to due diligence, producer responsibility and managing disposal of waste, which we can explore during the passage of the Bill. As regards amendments, I ask my noble friend to consider whether marine life and the marine environment should be included specifically within the remit of the Bill. Given the future development and stepping-up of wind farms offshore, I ask whether the research I have referred to will be undertaken. I ask him also to consider the implications for water companies of their responsibilities arising under the Bill. How will this sit with the targets set out in the Bill and the constraints of the five-year investment price review period?

Finally, given that the public funds for public goods approach will lead to a sea change in how activities are to be rewarded, what assessment have the Government made of the impact of ELMS in rewarding green activities rather than food production? Will it mean that we become less self-sufficient in food production and end up importing more food? If so, is this a goal that the Government are actively pursuing?