Environment Bill

Baroness Parminter Excerpts

Committee stage
Monday 28th June 2021 Lords Chamber

[Baroness Jones of Moulsecoomb (GP)]

My Lords, it is my pleasure to open the debate, especially on this group of essential amendments, which really goes to the heart of making the Bill fit for purpose. We must all know that the Bill currently just does not have any bite. We will have all these lovely environmental principles floating around, but no real duties on the Government other than having “due regard”. “Due regard” is a get-out clause. Ministers can easily have “due regard” for something and then make a completely opposing decision, and they know it. That is why they have chosen this wording. It is weaselly, squirming and not worthy of any Government who take the environment seriously.

My Amendment 73 would rectify this by requiring Ministers, public bodies and authorities to all stick to the environmental principles. This would be a clear requirement, so when they do not stick to them those decisions would be judicially reviewable. That is how things should be. It is a simple amendment that would give real clarity, because we all know what the environmental principles are.

My Amendment 75 would flesh out the environmental principles so that they reflect a much broader set of principles, written in simple, understandable language. For example, the precautionary principle and the polluter pays principle would actually be explained and defined. It would also add things such as using the “best available scientific knowledge”, the principles of public participation and the principle of “sustainability” to take into account the health of present generations and the needs of future generations.

Taken together, these amendments would create an accessible blueprint for our country and for the planet. They would set out the clear environmental principles on which our future would be founded, and require—not simply invite—the Government to implement those principles in all areas of policy. This is the type of legislation that a Green Government would implement, these are the principles that we would apply and these are the ways in which we would make ourselves accountable to Parliament, to the courts, and to future generations. I beg to move.

[Baroness Parminter (LD)]

My Lords, I have two amendments in the group. Their aim, rather like those of the noble Baroness, Lady Jones of Moulsecoomb, is to enable the Government to ensure that the environmental principles do the job we need them to do, making sure that environmental considerations are at the heart of decision-making. Indeed, the Explanatory Notes say of the principles:

“The principles work together to legally oblige policy-makers to consider choosing policy options which cause the least environmental harm.”


I am sure we would all welcome that, but, as the noble Baroness rightly said, there are far too many caveats and exceptions in this list. My Amendments 76 and 78 refer to four of them, and I would like to spend a little time drawing them out.

The first is alluded to in the amendment from the noble Baroness, Lady Jones, which is that public bodies are excluded. The policy statement on environmental principles applies only to Ministers. We know that public bodies, of which there are well over 350 in addition to all the local authorities in this country, do the lion’s share of pushing forward government policy throughout the country. It is therefore an omission of some magnitude that only Ministers of the Crown have to pay due regard to the policy statement on environmental principles. It seems to me that we would want all public bodies, such as Homes England and other bodies, to take account of this policy statement that the Government intend to prepare.

The second issue about which I have concern is the excessive use of the word proportionality by the Government as a caveat. If the noble Lord, Lord Vaux, were here I am sure that I would agree with him that there are times and places when the use of “proportionate” is correct. I feel comfortable with Clause 16(2) saying:

“A ‘policy statement on environmental principles’ is a statement explaining how the environmental principles should be interpreted and proportionately applied by Ministers … when making policy.”


However, by the time we get to Clause 18, there is a disproportionate use of the word “disproportionate”, which my amendment seeks to remove. It is again trying to curtail the application of the consideration of the environmental benefit.

Those are two areas, but the two I really wish to concentrate on are the exceptions of the MoD and the Treasury having to take due regard of the policy statement. As I said at Second Reading, the MoD has 2% of the land use in our country. It has a third of our SSSIs, which accounts, in this time of football interest, to more than 110,000 football pitches’ worth of the most protected land in its purview and control.

Last year, when the National Audit Office did a review of the MoD that looked at its “taking account of” environmental issues, it said that environmental protection was “a Cinderella service” in the MoD. As it stands, given all these SSSIs on MoD land at the moment, we have to ask: if the Government are going to meet their 25-year environment plan, which says that they want to have 75% of protected sites in a favourable condition by 2042, how are we going to achieve that if the MoD is not involved? At the moment, 52% of the MoD’s sites are not in a favourable condition.

I do not wish Members of the House to think that I do not think very highly of the MoD or its job of national security, because I do. It has proved that it can do a sterling job of environmental protection. I know this because last year, on MoD land near me in Pirbright, it found a very rare and endangered spider called the great fox-spider. It is instances like that, of which there are a number around the country, that show that national security and conservation and environmental protection can go hand in hand.

However, I do not understand why there is this blanket exemption for the MoD to have due regard to the policy statement. The Minister in the other place, Rebecca Pow, said in Committee:

“it is fundamental to the protection of our country that the exemptions for armed forces, defence and national security are maintained.”

That is not an explanation but merely a statement. She went on:

“The exemptions relate to highly sensitive matters that are vital for the protection of our realm”.—[Official Report, Commons, Environment Bill Committee, 3/11/20; col. 969.]


Again, that does not explain what those highly sensitive matters are.

Since I was not very clear what the Minister was trying to get at last November, I wrote and asked the MoD. I received a very eloquent reply in February from the Minister, Jeremy Quin, from which I quote:

“the Department remains committed to its duty to conserve biodiversity and delivering on the extended duty to ‘enhance’ biodiversity within the Environment Bill. These duties are not altered by the focused defence disapplication in the Bill.”

I question what Mr Quin is saying there. This is not a focused disapplication, and I ask the Minister here: if there are good and focused reasons why the MoD needs a specific disapplication, then we are all reasonable people and I am sure we will be happy to see that expressed in the Bill, but as it stands it is not a focused disapplication.

My second point is that the MoD is subject to the climate change obligations as outlined in the Climate Change Act. Indeed, the Climate Change Committee regularly offers structured advice to the MoD on how it is applying its climate change targets. So if it is good enough for the MoD to “have regard to” the obligations of the Climate Change Act, why is it not good enough that the MoD must take due regard of the policy statement on environmental principles?

Finally, although I am probably going on too long, the other issue I am extremely concerned about is the Treasury’s exclusion from the need to have due regard to the environmental policy statement. That means that consideration of departmental budgets and tax spending, which we know are fundamental to delivering the environmental gains, are outwith the consideration of the statement. In the Government’s response to the Dasgupta review—a day in Committee cannot go by without someone mentioning it—the Government agreed with Dasgupta that nature is a macroeconomic consideration and spelled out in some detail what they were doing to align national expenditure with climate and environmental goals. They quoted the duty on Ministers to have due regard to the policy statement on environmental principles but, perhaps not surprisingly, they did not mention the disapplication for the Treasury. Perhaps the Minister might wish to comment on the discrepancy between the Government’s response to the Dasgupta review and the statement.

I feel strongly that public bodies need to be included within the scope of the policy statement and that the MoD in particular needs to be in scope unless there are very tightly defined exceptions. Excluding the Treasury and all the commitments to departmental spending rides a coach and horses through this measure and frankly, the Government’s aim to deliver the environmental considerations at the heart of policy and decision-making will be wasted.

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[Baroness Parminter (LD)]

My Lords, I will be brief. After what was a fruitcake of amendments, we are now on a fairly simple Madeira cake—but it is no less welcome. I am grateful to be noble and learned Lord, Lord Hope of Craighead, for his forensic approach and for tabling this probing amendment. We need to be absolutely clear what is the purpose of this clause if we are to ensure that the Bill helps parliamentarians in future—including Select Committees, as the noble Baroness, Lady Neville-Rolfe, mentioned—properly to scrutinise the effects of proposed legislation to ensure that it is compatible with the Government’s environmental goals. So we welcome the approach of this probing amendment.

[Baroness Jones of Whitchurch (Lab)]

My Lords, I, too, shall be quite brief. I am grateful to the noble and learned Lord, Lord Hope, for tabling this amendment. As he says, it is probing and, as ever, he set out very eloquently the reason why it is important. I have listened carefully to his analysis and very much agree with what he said.

As we discussed in the previous group, throughout consideration of the EU withdrawal Bill, we were reassured that environmental protection would be at least as good as that which we enjoyed in the EU. However, it is already clear that the wording in this Bill on environmental principles is a weakened version of what has gone before, particularly in the need to have only “due regard” to the policy statement. The academic experts giving evidence on the pre-legislative scrutiny of the previous version of the Bill concluded that

“the Bill does not maintain the legal status of environmental principles as they have come to apply through EU law.”

Now the noble and learned Lord, Lord Hope, is rightly raising the issue of making new environmental law, as set out in Clause 19. His amendment would require that the level of environmental protection under existing environmental law should be clearly spelled out before it is possible to say, in Clause 19(3), that any new legislation will not reduce the level of environmental protection under existing law. It would remove any ambiguity and provide a double lock on protections for future environmental legislation.

At the same time, we should acknowledge that regression often happens by stealth, and can occur at a number of levels, not just in primary legislation. For example, it could appear in secondary legislation or in the detailed policy proposals that precede it. Therefore, ideally, the scope of this provision should include secondary legislation as well. It would also make sense for a statement of this nature to be published at a much earlier stage, as part of any consultation or before a new Bill was introduced. As we have discussed in other contexts, we need accurate baseline evidence, including about the impact of existing legislation, before we can assess the effectiveness of any measures proposed in any new legislation.

So we share the concerns that the noble and learned Lord has raised in this amendment and very much hope that the Minister will feel able to take these issues on board and give a positive response.

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

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

[Baroness Parminter (LD)]

My Lords, we on these Benches support both amendments. The noble Baroness, Lady McIntosh of Pickering, has indicated that hers is a probing amendment. We support the need for a clear statement of the financial independence of the OEP because, by that means, we can be clear that it has sufficient funds for its function.

I very much support the comments of the noble Lord, Lord Rooker, about the need for its budgeting to be published. Parliamentarians have often had to rely on other opportunities, such as that referred to by the noble Lord, Lord Krebs, when the chair of Natural England made public comments at a Select Committee down the other end, or charities getting information by FoI about the funding shortfalls of the Environment Agency. That should not be the way we have to find out about the budgets of these important bodies. That information should be available to parliamentarians; it should be published and we should all be able to see it clearly.

I echo my colleague, my noble friend Lord Bruce of Bennachie. In his remarks at the end, I hope the Minister will say more about the current budget for the OEP. I know it is in its interim phase, and I understand that its first board meeting will be this week. It has been suggested that, in its initial year, staffing levels will be around 25 members. Clearly, that will not be its final staff resource level, but if the Minister could indicate the scale of OEP staffing next year, that would give us a clearer idea of the capacity of this critical body to deliver the functions we all need. I hope he will say a few words about scaling up the budget of the body for next year.

In closing, I agree with other Members on the principle that a five-year budget associated with a work plan be published and put in the Bill.

[Lord Khan of Burnley (Lab)]

My Lords, I rise to speak to Amendment 92 in the name of the noble Baroness, Lady McIntosh of Pickering, and Amendment 93 in the name of my noble friend Lady Jones of Whitchurch. Both are similar in nature and one could assume that we, on the Labour Benches, and the noble Baroness, Lady McIntosh, have been sharing our homework. I thank the noble Baroness for moving her amendment so eloquently and reiterate the case she made for the OEP to have flexibility and longevity when setting budgets.

In June 2018, the Government recognised the value of multi-annual budgets. In announcing a five-year settlement for the NHS, the Government emphasised that this long-term funding commitment means the NHS has the financial security to develop a 10-year plan. If the OEP is to work strategically, it too will require a similar level of security. The noble Baroness, Lady Ritchie of Downpatrick, made the same point, looking at comparable bodies and the way they have operated in taking a long-term approach.

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We can also take some reassurance from the fact that Dame Glenys Stacey, the newly-appointed chair of the office for environmental protection, is very independent-minded and that a multiannual budget has been promised. Indeed, my concern is that the new body will be so independent and keen on the environment from which its status derives that it will neglect other equally important aspects of life, notably the economic dimension, particularly as we emerge from the unprecedented crisis of Covid.

[Baroness Parminter (LD)]

My Lords, it is a pleasure to follow the noble Baroness, Lady Neville-Rolfe. We often agree but on this occasion I have to say that we do not. I shall speak briefly because the noble Lord, Lord Krebs, introduced so eloquently the amendment to which I put my name, concerning Clause 24 stand part. It would remove this clause, which would give the Secretary of State the right to give guidance to the OEP that it must have regard to in preparing its enforcement policy.

I do not want to repeat points that have already been made, so I shall merely congratulate the Select Committee on the Constitution, which is very ably chaired by the noble Baroness, Lady Taylor of Bolton, and refer to two points that it made. The committee said that:

“Guidance is a poor substitute for clear rules”,


and it is correct in saying so. That goes very much to the point made by the noble Lord, Lord Krebs: when it is guidance, it is hard for us to judge how wide-ranging or how constricting it will be to the independence of the OEP, but it could be very wide-ranging and that is one of the reasons why I am concerned.

The Constitution Committee also said:

“The power to issue guidance on the OEP’s enforcement powers could call into question how independent it will be.”


For me, that is the nub of the issue: it is about the public perception of how independent this new watchdog will be. At a time when there is increasing concern about public confidence in public institutions and indeed in politicians, we need to ensure that this new body is seen to be not just as independent as we would wish it to be but as independent as it needs to be.

It is not acceptable for the Minister to say, “Oh, we’d only use this guidance as a last resort”. As the noble Baroness, Lady Neville-Rolfe, said, we have a very independent-minded interim chair of the OEP at the moment; however, that may not be the case in future. Irrespective of that, we need to be clear that it has to be set down in statute that this is an independent body with the power to set its own enforcement policy. I am afraid that any indication that the Government can somehow meddle by looking into matters in other bodies within the Defra family just does not cut the mustard. I therefore feel very strongly that Clause 24 needs to be removed.

[Lord Rooker (Lab)]

My Lords, briefly, the Minister would be well advised to pay attention to what the noble Baroness, Lady Ritchie of Downpatrick, said. The Northern Ireland situation is not a coalition; it is a power-sharing Executive. The parties carve up the ministries. I had one year as a Minister when there was direct rule. I had planning and the environment among other responsibilities and duties. I discovered that most of the political parties there do not believe in planning. They would like a bungalow in every field. That is the situation: if you fly over Northern Ireland, have a look at it. Imagine a bungalow in every field, with the waste and everything else. “If you own land, you can do what you want with it”: that is what I was told. So it is a really sensitive issue to get the wrong person at the wrong time. It would be terrible to meet without someone representing Northern Ireland, but we should be aware of the way the d’Hondt system allows the parties to control the ministries.

Like the noble Lord, Lord Krebs, I heard the Minister say that there is no requirement to follow the guidance. I wrote it down at the time. That is interesting. I would love to be a fly on the wall the day the department’s lawyer goes to see the Minister and says, “Well, Minister, it only says you ‘must have regard’. You want to do this, that and the other and do your own thing, but it actually says you ‘must have regard’. Here’s all the reasons why you have to have regard to what the Secretary of State says.” Before you know it, there will be a threat of malfeasance on the office, because it has gone against having regard to a sufficient extent of what the Minister said.

How do you measure “have regard”? I realise that I will be followed by lawyers; I am not a lawyer, but I have been there when the lawyers have come in and said, “You can’t do this because you’ve got to take account of this, that and the other.” That is the pattern: it is the way advice to Ministers from the department’s lawyers works. I am not criticising or complaining about it; I am just saying that that is the way it works. So, if it is not clear in the legislation to start with, we are building up trouble. There are therefore good grounds for taking Clause 24 out of the Bill.

The noble Lord, Lord Krebs, reminded me that in February 2017 I too had the privilege of being on the EU sub-committee, chaired by the noble Lord, Lord Teverson, when we arrived at this. I remember doing fringe meetings at the Labour Party conference the year before when the sector was waking up to the fact of the governance gap. As I said at Second Reading—I will not read it all out—Michael Gove had woken up to it by 13 November 2017, when he said that there has to be mechanism to replace what we are losing because of Brexit. He went on to say we would have

“a new, world-leading body to … hold the powerful to account. It will be independent of government, able to speak its mind freely.”

That was not a speech; that was a published article, authored on GOV.UK.

My final point is this. I know that it is easy and people will say that we have unaccountable agencies and this, that and the other, but sometimes they are a comfort blanket to Ministers. Situations arise in society where the public do not believe what they are told by Ministers. Going back to the time before I entered government, that was the situation regarding food safety: a collapse in confidence in what people were told by Ministers. That is one of the reasons a semi-independent body was set up, so that Ministers do not have to go on telly and say, “The food’s safe—please eat it”. People did not believe them. The technical people, the scientists and those who are qualified to have a view go on when there is such a situation—the noble Lord, Lord Krebs, is aware of that, having set up the agency.

I was originally partly responsible for some of the legislation that set it up; I certainly never forecast that I would be the chair. However, the fact is that these bodies are useful in certain circumstances because the public have a trust in them. It is important that the public have that trust; I will not start to imagine what kind of environmental problems there would be where there is public uproar and where Ministers find it very useful to have an expert body that is able to speak to the public and engender their confidence. Believe you me, I am giving this away for free. It can be a bonus for Ministers, and they ought to wake up to that fact.

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Moved by

[Baroness Parminter]

103: Clause 29, page 17, line 7, at end insert “and any other matters relating to the natural environment.”
Member’s explanatory statement
This amendment seeks to ensure the OEP can offer advice to Ministers on matters they consider relevant to their remit.

[Baroness Parminter (LD)]

My Lords, I shall try to be brief but I have two amendments in this group, Amendments 103 and 104, which relate to the Bill’s definition of “environmental law”. I am grateful for the support of my noble friend Lord Teverson.

Amendment 103 is about the matters on which the OEP can give advice to the Government, unasked. It is clear in the Bill that the Secretary of State can ask the OEP for advice about

“any proposed change to environmental law, or … any other matter relating to the natural environment”

but, conversely, the OEP can give advice only on

“any changes to environmental law”

and does not have the additional option to provide advice unasked on other matters relating to the natural environment.

This is important because of the definition of “environmental law” in the Bill. Indeed, it is important to look at what the Explanatory Notes say about what constitutes environmental law in Clause 45, because they seem to exclude some issues that I think most noble Lords would wish the OEP to be able to advise the Secretary of State on, unasked. Paragraph 381 of the Explanatory Notes—I think it is 381; I am getting to the stage where I need glasses at this time of the evening—on the definition of “environmental law”, states:

“Another example is planning legislation. Whilst provisions concerning environmental impact assessment and strategic environmental assessment are clearly concerned with environmental protection as set out in clause 42 … most other areas of planning legislation are not mainly concerned with environmental protection, and therefore will not fall within the definition.”


So, according to the Explanatory Notes, environmental law does not include the majority of planning legislation. That is really significant because we are expecting shortly what will no doubt be a very controversial new Bill on planning. According to the Explanatory Notes, the OEP can give advice only on environmental law, and planning is excluded from the definition of “environmental law”.

Equally—I have raised this in past sessions with the Minister, for which I am grateful—the Climate Change Committee can give advice on planning matters freely and without being asked, as it did so well in the case of the impact of the Cumbrian coal mine in driving a coach and horses through our net-zero targets. Again, as I read it, the definition in the Explanatory Notes seems to suggest that the OEP could not give such advice unasked. However, the Minister confirmed to me in those meetings, through his civil servants, that I am wrong in making that presumption. I have therefore tabled this amendment to give him the chance to put on the record tonight—I would like this to be said specifically—that the OEP can give advice, unasked for, on environmental law matters, including planning provisions and major planning applications. This needs to go on the record because, if it does not, there is a worrying lacuna and the only way to get around it is to accept my amendment, which basically would give the OEP the right to advise the Secretary of State on

“environmental law, or … any other matter relating to the natural environment”—

a replica of the Secretary of State’s position in terms of asking the OEP for advice.

My second, slightly shorter, amendment also concerns the definition of “environmental law”, which is absolutely key in governing the OEP’s functions. This matters in the context of Amendment 114, which would remove some broad carve-outs for disclosing information—including the old chestnuts of defence and spending.

I have three issues with the definition of environmental law, which my Amendment 114 seeks to address. The current definition removes legislative provisions dealing with funding and resource allocation from the OEP. That means that the OEP cannot offer advice to the Government on these matters. We know that, in the past, there have been significant concerns over environmental health indicators flatlining due to funding. Indeed, in December last year, the issue was exposed in relation to funding cuts to the EA of 80%. But, as it stands, this definition removes those provisions of information about funding and resource allocation from the ambit of the OEP.

Secondly, again, the Armed Forces are outwith the ambit of the OEP and, as I made clear in the debate on Amendment 78, this is a worrying gap. It is not just about the enforcement of the law; we know that the CCC was able to offer advice to the Armed Forces on meeting climate goals and, again, the OEP would be unable to do this under the current definition in the Bill of environmental law.

Thirdly, the way the clause is drafted suggests that the OEP goes beyond matters overlapping with the Information Commissioner’s Office, which oversees and enforces public authorities’ compliance with the Environmental Information Regulations. It seems to me that that clause excludes from the remit of the OEP important obligations such as the disclosure duties of keeping registers and record keeping to uphold environmental law. An example of such an obligation is those under the Control of Pesticides Regulations, whereby users have to keep records of pesticides they use for five years and make them available to relevant authorities upon request.

In summing up, I would be grateful if the Minister could confirm whether obligations such as those would, under this clause’s definition, fall outwith the OEP’s scope. If there are genuine concerns about the overlap between the OEP and the ICO, why is there not a memorandum of understanding in the same way as has been proposed for the OEP and the CCC? That would seem to be a reasonable response, whereas what we have here is almost a sort of belt-and-braces approach, which goes beyond what is appropriate. So I hope that, in responding, the Minister will clarify the matters I raise in regard to Amendment 103 and ensuring that planning can be something on which free advice can be given, and that on Amendment 114 he will give some clarity about why the definition is as it is.

Debate on Amendment 103 adjourned.