Environment Bill

Debate between Duke of Montrose and Lord Krebs

Committee stage
Monday 12th July 2021 Lords Chamber

[Lord Krebs (CB)]

My Lords, I will speak to Amendments 255 and 256 in my name, together with those of the noble Lord, Lord Randall of Uxbridge, and the noble Baronesses, Lady Parminter and Lady Jones of Whitchurch; Amendment 257AA in my name and that of the noble Baroness, Lady Bennett of Manor Castle; and the proposition that Clause 106 do not stand part the Bill, in my name and those of the noble Lord, Lord Randall of Uxbridge, and the noble Baronesses, Lady Parminter and Lady Jones of Whitchurch.

Clauses 105 and 106 were added to the Bill by the Government two months ago without any consultation. These two clauses have important potential adverse effects that these amendments seek to rectify. First, they threaten to weaken the protection of our most valuable conservation habitats and species. Secondly, they confer considerable discretionary powers on the Secretary of State to change the rules governing environmental protection.

In order to fix ideas, I will first explain what these special sites and species are. They include more than 200 special areas of conservation protected under the habitats regulations, such as the north Northumberland coast, the North Yorkshire Moors and Ashdown Forest. They include wetland sites, such as the Humber Estuary, portions of the Essex Marshes, the Isles of Scilly and the Exe Estuary, that have been designated under the Ramsar Convention. Last but not least, they include the more than 80 English special protection areas classified under the Wildlife and Countryside Act 1981 and subsequent legislation, primarily for the protection of bird species. Between them, these three categories protect our greatest natural assets. They protect many rare species, such as the lady’s slipper orchid, the marsh fritillary, the bottlenose dolphin and the lesser horseshoe bat.

Currently, the regulations require public authorities, including the Secretary of State, to comply with the birds and habitats directives, which were the legal source of the habitats regulations. But Clause 105 gives the Secretary of State powers to swap this duty to comply with the birds and habitats directives with a requirement to comply with the new objectives set out in the Environment Bill; in other words, it changes the obligation to protect our most precious conservation sites and our most endangered species.

The Minister will no doubt say there is nothing to worry about and that the Government have no intention of weakening the protection of these sites and species. He may point to the fact that Clause 105 has safeguards built in, such as the requirement in subsection (7) that the Secretary of State must be

“satisfied that the regulations do not reduce the level of environmental protection provided by the Habitats Regulations.”

He may also say that Clause 105(9) requires the Secretary of State to

“consult such persons as the Secretary of State considers appropriate”,

although we should note that this is a rather vague commitment; we do not know who the “persons” are.

The Minister may also argue that the habitats regulations are overly bureaucratic and that Natural England, given the swingeing cuts to its budget to which I referred in an earlier debate, will not have the capacity to deal with both the habitats regulations and the new requirements introduced by the Bill. However—and this is the central point—there is a key distinction between the requirements of the Bill and those of the habitats regulations.

The targets in the Bill are all about improving our natural environment as a whole. In contrast, the habitats regulations and related regulations are all about protecting individual sites, populations and sometimes even individual specimens; in other words, the two forms of protection are complementary and are not alternatives. Amendments 255 and 256 would speak to this complementarity by ensuring that the current protections for particular sites and species remain in place by replacing “instead of” with “in addition to”. The amendments restrict the power of the Secretary of State to sweep away existing protections while still allowing the law to continue to evolve and cater for domestic conservation priorities.

Amendment 257AA would add an additional layer of protection by requiring the Secretary of State to make changes only if they were compatible with five international conventions. It would also replace the vague commitment to consult persons who are considered appropriate by the Secretary of State with a specific commitment to consult experts, including the statutory bodies: Natural England, the Joint Nature Conservation Committee and the office for environmental protection. It would also ensure that there is parliamentary scrutiny of any changes.

If the Secretary of State really means to follow Clause 105(7), these proposed amendments should simply underpin the intended outcome. If, however, the Government object to the amendments, one has a right to ask why. As a start, I ask the Minister a simple question: can he confirm that the statutory bodies I have mentioned would be consulted by the Secretary of State before any regulations were changed?

Finally, Clause 106 gives the Secretary of State power to amend Part 6 of the habitats regulations in almost any way. This part of the regulations deals with development projects. It includes rules to prevent harm to protected sites except for reasons of overriding public interest.

The habitats regulations do not stop development, but they do ensure that projects are properly assessed and that effective mitigation and compensation are in place. Projects such as the Thames Basin Heaths Partnership have shown how the habitats regulations ensure that development takes place in a way that is compatible with nature, helping to protect the remains of the UK’s vanishing heathlands while still allowing the building of many new homes. Successive reviews have found the regulations to be proportionate and effective, giving certainty to developers and environmental groups alike.

Time and again in the debates on the Bill we have referred to the conflict between conserving nature and allowing development. Time and again, we have heard that the Bill, in many ways, appears to tip the balance in favour of development and against nature. Some might even be driven to argue that the Bill is designed to protect nature provided that this does not interfere with other priorities, housebuilding in particular.

The Minister may argue, as with Clause 105, that safeguards are built in. Under Clause 106, the Secretary of State must be satisfied that protections provided by the habitats regulations are not reduced and must explain the reasoning to Parliament. But this is an entirely subjective test, left to the opinion of the Minister, rather than an effective legal safeguard. Clause 106 requires the Secretary of State only to have regard to the importance of conservation and biodiversity. It does not require the Secretary of State to consult with relevant experts, only with such persons as are considered appropriate.

At this stage, we have had no indication at all about how the powers would actually be used or what problems with the habitats regulations the Government may be seeking to address. Could the Minister give us some examples of these problems?

In my view, Clause 106 could be used to allow the Government to sacrifice our natural environment on the altar of development, sidestepping protections provided by the habitats regulations. If the Minister says, “Don’t worry, we will look after nature”, the best way to convince us of this would be to delete this clause from the Bill. I beg to move.

[The Duke of Montrose (Con) [V]]

My Lords, I will speak to my Amendments 257A, 257B and 257C. I thank the noble Earl, Lord Devon, for adding his name to them. It is a pleasure to follow the noble Lord, Lord Krebs, so that we can debate whether the Government can be trusted to guard environmental policy and how much. In seeking to move that Clause 106 not stand part, in spite of its emphasis on conservation and biodiversity, it appears the noble Lord, Lord Krebs, would not like the Secretary of State to have any room to manoeuvre on the proposals presently part of Part 6. I declare my interests as in the register but also particularly as a livestock farmer in a national park and a member of NFU Scotland.

The Government have already passed one amendment to the wording of the habitats regulations that we were operating while we were in the EU, but it was all done so rapidly that it is not altogether surprising that they have a clause in the Bill that would allow them to modify things once the rural environment has settled down. This group of amendments is all about how far they should be able to do so as the proposal unfolds.

Noble Lords will be well versed in the Government’s 25-year environment plan, which is intended to promote a fairer society and social justice, among other things. It was published in May 2019 and outlines their proposals but still lacks many of the mechanisms they hope to be able to use to achieve this, so it remains quite difficult to predict the outcomes.

The purpose of my Amendment 257C is to remedy the fact that in neither the 25-year plan nor this piece of legislation is there a direction to the Government to consider social and economic impacts and give them due regard.

Environment Bill

Debate between Duke of Montrose and Lord Krebs

Committee stage
Wednesday 7th July 2021 Lords Chamber

[The Duke of Montrose (Con) [V]]

My Lords, the Bill is systematically revising so many aspects of the environment where former approaches have been lacking. A large slice of the area where noble Lords have been discussing improvement is in basically rural issues. I have declared my interests as a livestock farmer.

The Government have laid out their framework for dealing with overall environmental issues in Clauses 1 to 19—their targets, reviews and renewal plans and what they term their environmental principles. Do we reckon to approach people with a carrot or a stick? In my last intervention I quoted a phrase from Gulliver’s Travels about increasing the blades of grass from one to two, which gave a positive spin to an environmental principle and a vision for people to work towards.

In trying to invent something similar in its phraseology, I will borrow a phrase from Bob Geldof and say we are now asking as many people as possible to enlist to feed the world holistically, in terms of its air, water, biodiversity and people. By this, we could earn the thanks of future generations. There might be a catchier way of expressing it, but many feel that this is the sort of thing they should make an effort to achieve, even if we differ in our views of how to achieve it. The mountain in front of us is to learn to change the motives of countryside managers. That is the best guarantee of the permanence we are looking for.

This group of amendments focuses on biodiversity gain as a condition of planning permission. I listened with much interest to the Minister giving some clarification of what it intends to achieve for national strategic infrastructure projects. His Amendment 201A, at a quick glance, appears to be asking for the ultimate Henry VIII measure; it is almost saying that we do not know the detail of what we want to achieve, but want all the powers that might be necessary to achieve it. This echoes what those with responsibility in rural areas are feeling; we do not yet know what new support systems will achieve. But there is a critical difference in their case, as it comes without any power to change the terms other than as the Bill allows.

It is still possible that all agriculture will achieve some biodiversity once reliance is placed on crop rotations and restoring natural fertility. Can the Minister clarify, first, whether there will be some guidance on what level must be reached before land is considered suitable for biodiversity off-setting? In the same context, will assisting the achievement of biodiversity gain on a remote site be regarded as equal to a gain within the boundary of a significant site?

We are embarking on an unquantifiable change in the countryside. As farmers, we know that Mother Nature will respond, but with what? We cannot tell what the final outcome will be to it all. There will always be some looking to achieve a viable enterprise from the land, and we may have to adapt. That is where I cannot support Amendments 196 and 201AZB put forward by the noble Baroness, Lady Hayman of Ullock. She feels that 30 years is not long enough, and perhaps we all feel uneasy leaving some of this entirely in the hands of the Secretary of State. Would it make any difference to their position if the stipulation was 50 years? I heard the noble Baroness, Lady Young of Old Scone, talk about 100 years.

I was looking forward to supporting Amendment 200 in the name of my noble friend Lord Blencathra, but I gather that this is unnecessary because the Government have decided to accept it and all its implications. The only thing in my mind is whether it would be better to introduce the marine element to the main section of the Bill, as is proposed in a later group by the noble Lord, Lord Teverson. Would it still be necessary to mention “marine environment” in this section? I look forward to the Minister’s response.

[Lord Krebs (CB) [V]]

My Lords, I support Amendment 196 in the names of the noble Baronesses, Lady Jones of Whitchurch, Lady Parminter and Lady Bennett of Manor Castle, and the noble Lord, Lord Teverson. I also support other amendments in this group, which I will mention when I come to them.

I join other noble Lords in welcoming government Amendment 194B and the new Schedule 14A, which will include nationally significant infrastructure projects in biodiversity net gain. In this context, I also support Amendment 194C, which aims to close a potential loophole by including other major infrastructure projects, such as those concentred under a hybrid Bill procedure, in the net-gain requirement.

Amendment 196, as we have heard, seeks to remove the 30-year time limit for off-site compensatory habitat under biodiversity net gain. Many Peers have spoken eloquently in support of this change, although some have said that “in perpetuity” may be too long. So there may be a debate to be had: if not 30 years, how long should it be? Still, it should certainly be for much longer than 30 years.

The Government’s argument for the 30-year limit appears to be that landowners may be reluctant to maintain habitats and lock up land in perpetuity. However, if the aim is to protect nature for future generations, it is crucial for net-gain projects to have a longevity of greater than one generation. Furthermore, the development projects that net gain seeks to off-set will often certainly last much longer than 30 years, as the noble Baronesses, Lady Bennett and Lady Hayman of Ullock, mentioned. If a habitat created to compensate for damage by a development can simply be ploughed up after 30 years while the damaging development is left standing, we will not be passing on a guarantee of nature in better condition to the next generation. This is not damage avoided but damage deferred—an asymmetry that punishes nature.

As it stands, the Bill creates a carousel of land-use changes where landowners are paid to off-set environmental harm for a while before turning the land over to some other use. Instead we need lasting habitat that will genuinely help to create a nature recovery network, even if the result is fewer parcels of habitat for sale; that is the price of restoring nature. As the noble Earl, Lord Devon, rightly pointed out, we have to make hard choices about land use.

Furthermore, as others have pointed out, the creation of new habitats and the arrival of new species can often be a long, slow process. We have already heard several examples, to which I add my local RSPB reserve on Otmoor, near Oxford. It was established in 1997 by converting farmland into wetland, and it is still attracting additional new species of birds each year. A limit on the time horizon of net-gain projects will add to concerns already raised by ecologists at the Durrell Institute of Conservation and Ecology at the University of Kent, who found in a recent report that net gain is leading to large losses of green open space, off-set by the promise of better-quality habitats at an uncertain time in the future. They also found that 95% of the off-setting projects produced small disjointed areas of habitat rather than following the principles of

“more, bigger, better, more joined-up”

proposed by Sir John Lawton.

Given the shortcomings already identified in the operation of net gain, surely the opportunity in this Bill is to strengthen the protection of nature where we can, including by lifting the 30-year restriction. In other jurisdictions, such as the United States and Australia, off-sets are required to last either as long as the development itself or for perpetuity. If the Government are serious about creating real gains for nature from development then those gains need to be lasting.

Amendment 198A in the name of the noble Baroness, Lady Young of Old Scone, seems a no-brainer. Just as we have a waste hierarchy, we should surely have a biodiversity hierarchy: do not do harm, minimise harm and, lastly, compensate for harm.

In conclusion, the onus is on the Minister to explain to us why the perfectly sensible Amendments 194C, 196 and 198A should not be accepted. I very much look forward to his response.

Environment Bill

Debate between Duke of Montrose and Lord Krebs

Committee stage
Monday 28th June 2021 Lords Chamber

[The Duke of Montrose (Con) [V]]

My Lords, in addressing the amendment put forward by my noble friend the Minister, the Committee has today listened to some skilful analysis of the devolution situation from the noble and learned Lord, Lord Hope. I await his comments on this amendment with some interest.

I want to probe my noble friend the Minister a little more on one aspect of what he sees as the content of his amendment, which refers to

“how the OEP intends to co-operate with devolved environmental governance bodies.”

Like some of your Lordships, I sat in the House as we debated Schedule 5 to the Scotland Act in 1998. The argument ended up being not to reserve the environment to Westminster, but there was still the oversight of all the EU’s environmental legislation to fall back on. That is the situation we face at the moment.

The Government are working on the problems that this now presents. I understand that they have hopes of a legislative consent Motion for their ideas. We foresaw some of this when we debated the Trade Bill in January. The Government were prepared to admit that one route to achieving agreements was to have a number of framework agreements. How many frameworks do the Government expect to have in relation to the environment, and what mechanism are they using to reach agreement on any of them? Are they working on any of these? If so, what stage have they reached? I wonder whether my noble friend could give us some details either now or in writing.

[Lord Krebs (CB)]

My Lords, I will make a couple of brief points in relation to Amendment 96 in the name of the noble Lord, Lord Lucas. First, a system exists that I think would meet what the noble Lord is asking for: I refer, of course, to the guidelines developed by Lord May of Oxford when he was the Government’s Chief Scientific Adviser. These guidelines have three core principles governing the use of evidence in policy-making, which is partly what the noble Lord, Lord Lucas, was talking about. They are: first, seek a wide range of expert opinion; secondly, recognise uncertainties in the evidence; and thirdly, openness and transparency in the use of evidence. These guidelines will be especially important for the OEP because many, if not most, of the environmental issues that it will deal with will be ones where the evidence is contested. People will have strongly held opposing views, or they will claim that the evidence is incomplete or that there is uncertainty.

The answer to the request from the noble Lord, Lord Lucas, is for the OEP to follow the Government Chief Scientific Adviser’s guidelines. At the same time, the OEP may wish to follow the example of many other public bodies in conducting as much of its business as possible in public meetings so that the decision-making processes can be directly observed and the evidence, as it is being evaluated, can be studied by the public. Does the Minister agree that it would be valuable if the OEP operated under the guidelines set out by the Chief Scientific Adviser?