Environment Bill

Debate between Earl of Caithness and Earl of Devon

Report stage
Wednesday 15th September 2021 Lords Chamber

[The Earl of Devon (CB)]

My Lords, this is a groundbreaking Bill in many ways but, from the perspective of English property law, no provisions are more revolutionary than Part 7 and the introduction of conservation covenants. This is a seismic shift, meaning that, for the first time since the Normans introduced common law, owners of land will be able to bind successors in perpetuity to positive obligations to manage land in a particular way. More radical still, and in a departure from the recommendations of the Law Commission, the counterparties to these obligations will now include for-profit companies—private enterprise. As a farmer and a former property barrister now practising at an agricultural law firm with clients in this space, I support this scheme and want it to succeed, but there are glaring imperfections in Part 7, causing major concern to, among others, the NFU, the Bar Council and the RICS. Because of that I have tabled Amendments 109, 110, 112, 113, 114 and 115.

Amendments 109 and 110 focus on the formalities by which conservation covenants are created, ensuring that they say what they are and what they do on their face and are created by deed rather than, as currently drafted, by a simple exchange of emails. Amendment 112 ensures that for-profit responsible bodies are conservation- focused, not distracted by other, competing duties, such as making profits for their shareholders at the expense of the environment. Amendments 113 through 115 resolve the untenable position when a responsible body defaults, such that the Secretary of State steps in and, in perpetuity, binds a landowner to a positive obligation without any reciprocal duty to pay the fees covenanted. Since Committee, I am grateful for the support of the noble Baroness, Lady Jones of Whitchurch, the noble Lord, Lord Oates, and the noble Viscount, Lord Ridley, and many others, including the noble Baroness, Lady Jones of Moulsecoomb, indicating a very broad consensus across your Lordships’ House for these modest but vital amendments.

I am also grateful to the Ministers in Defra and the Bill team for their engagement, although I remain concerned that there is a failure to grasp the significance of the issues raised. Given the time, I do not propose to restate the hypothetical parade of horribles that I set out in Committee, but I note that no one has argued that those hypotheticals are wrong. The Government erroneously asserted that conservation covenants needed to be executed by deed in order to be registered as local land charges, but they have since accepted that that was inaccurate. That is appreciated; however, this only reinforces the sense that this radical change to property law is being rushed through without due consideration or understanding. It is our duty to build in necessary safeguards to protect farmers, the environment and future generations from the threat of zombie covenants blighting our green and pleasant land in perpetuity.

Key to resolving these concerns is Amendment 110, requiring that conservation covenants be executed by a deed which contains its key terms as to duration and payments on its face. This is the traditional and best way to ensure that advice is taken such that the potentially punitive and perpetual implications of entering a conservation covenant are properly understood at the outset. The Government say that their draft guidance recommends legal advice, and this should be sufficient, but anyone willing to enter a perpetual covenant by a mere exchange of emails is hardly going to sit down and read the guidance first. Defra wants no brake on the uptake of these covenants and, rather unusually, it is farmers seeking greater formality and not the Government. Defra has directed me to other statutory covenants created without necessarily using a deed, but none of these contains positive covenants, perpetual in nature, with a for-profit private counterparty. These are largely restrictive covenants with trusted statutory authorities.

Amendment 111 in the name of the noble Earl, Lord Caithness, sets out at considerable length the full formalities to be considered in executing a conservation covenant, formalities the RICS would no doubt recommend. Such extensive formalities may not be warranted within the legislation, but they are exactly what will be considered by properly advised parties executing such a covenant by deed.

The Government suggest that Amendment 112 is unnecessary because Defra will ensure that responsible bodies are truly responsible, but I have read the draft guidance and nowhere does it state the objective parameters against which responsibility will be judged. Indeed, it appears that foreign entities can be responsible bodies, so long as they have a PO box in the UK, and entities directly connected with the landowner could be responsible bodies too—there is no prohibition.

I was also surprised in Committee that the Minister cited the example of for-profit water companies as the type of body the Government consider to be responsible. Would that include Southern Water, recently fined £90 million for environmental degradation on an industrial scale in the pursuit of shareholder profits?

Amendments 113 to 115 solve the intolerable impact of the responsible body becoming bankrupt or deregistered and passing its role as counterparty to the Secretary of State, who then has no obligation to pay anything to the landowner, whatever the cost of the landowner’s conservation commitments. These amendments strictly limit the duration for which the Secretary of State is holder of last resort to 12 months, after which, if no responsible body is willing to take the covenant on, it is simply discharged. This has the effect of killing a zombie covenant and protecting the landowner and the land from the risk of a perpetual obligation with no payments in return. Without this change, the scheme is fatally flawed, as anyone advising on such covenants would have to identify this very real risk and advise against it. Of course, if landowners do not take advice, they will not know of this risk, as I note that no mention is made of it in Defra’s draft guidance.

I could go on, but time is short and the arguments are clear. For these reasons and the myriad others I set forth in Committee, I beg to move.

[The Earl of Caithness (Con)]

My Lords, I support the noble Earl, Lord Devon, in his amendments. They are hugely important. I am a great supporter of conservation covenants and I want them to work effectively. As he just said, I have a number of amendments in this group.

I am looking at conservation covenants in something akin to a divorce situation. One can enter into marriage with the very best of intentions and it is all going very well, but then it starts going sour. Divorce can be extremely costly and brutal. A conservation covenant could be entered into with the very best of intentions, but here the situation is complicated because the parties entering it could be different parties when it comes to a conclusion. There could be very different interpretations and a great deal of costs.

The noble Earl, Lord Devon, did not actually mention costs so much today as he did in Committee, but in Clause 126 the final remedy is the Upper Tribunal and that can cost £50,000 to get started. Can farmers really afford that, particularly tenant farmers? The average size of a farm in England is 87 hectares and the cash flows are bare at the most. They might be a little better with the wheat price at the moment but, sure as anything, we have seen wheat prices go up and come down. You cannot expect farmers to have that amount of ready cash to fight in the courts.

I therefore seek to spell out in some detail the sort of things that need to be taken into account. I do not expect many conservation covenants to be undertaken by tenants but, if one is, all the freeholders of the land should be signatories to that agreement. I hope my noble friend will confirm that. It is a very un-Conservative thing to deprive the beneficiary of a reversionary interest of the full value of that interest, which could easily be done if a tenant enters into an agreement which prejudices the farm at the end of the tenancy. Not only does a conservation agreement affect one property, but it could very easily affect the neighbouring properties and surrounding farms if that conservation covenant involves the re-wetting of the land, which can take many years to undo.

I hope we can get a simpler way to modify and change the tenancies. When negotiation has failed, we need a simple system. I suggest in my amendments that there is an alternative dispute resolution which is simple, cheap, and which farmers, tenants and landowners are used to. I am hugely concerned by the impact that outside bodies might have. As the noble Earl, Lord Devon, has just reminded us, all you need is a PO box. You could get foreign investment companies coming in, taking over these conservation covenants and making life extremely difficult for the occupier.

I very much hope that the Government will be sympathetic to the amendments tabled by the noble Earl, Lord Devon. His Amendments 109 and 110 cover all the points I have raised, but I have spelt them out in a different way because they are of extreme concern to farmers.

Environment Bill

Debate between Earl of Caithness and Earl of Devon

Report stage
Monday 6th September 2021 Lords Chamber

[The Earl of Caithness (Con)]

My Lords, I rise to support the amendment of the noble Baroness, Lady Bennett, and I am grateful to my noble friend Lord Randall for pointing out that my Amendment 18 is coming up, complementing this amendment in that it asks the Government to “prepare a soil … strategy”. No one could have put it better than the noble Baroness, Lady Brown of Cambridge, just now, and much of what she said is reflected in the wording that I have in Amendment 18, which we shall come to.

However, the Government must include plans for the integration of soil management with environmental objectives, such as climate mitigation, flood-risk minimisation, water-quality measures and policies relating to food production. All of this is so integrated that, unless one has a comprehensive approach to it, one will fail. In my view, it is very sad that the Government have got policies for air and water but no statutory policy for soil. My Amendment 18, which I will not speak to at length because I am speaking to this amendment, is equally as important as this amendment.

My noble friend Lord Deben mentioned that soil is a great sequestrator of carbon. Indeed it is, but saying “soil” is like saying “fruit”—there are so many different types of soil that a different approach will have to be taken on most farms, probably, because the soil varies so much. Some of the sandy soils are not terribly good sequestrators; they could be made much better with improved farm management, but, if you have a heavy clay soil, you have an inbuilt advantage for sequestration from day 1.

The noble Lord, Lord Whitty, said how little Defra spent on soil. It is rather frightening that only 0.4% of the environmental budget is spent on soil—that is a catastrophically low amount of money, which is why this amendment is so important and why my Amendment 18 is equally important. The whole question of soil and research needs much more expenditure and we need to be clearer on it, but let us have one basic fact in mind: about 25% of our biodiversity is in our soil. That is why we need to get this amendment—and mine —in the Bill.

[The Earl of Devon (CB)]

My Lords, I should note, for the record and for the whole of Report, my interest as a Devon farmer. For many years, we have been adding organic matter to our porous red sandstone soils to increase sequestration, combat run-off, build resilience to drought, decrease the need for chemical fertilisers and provide Teignbridge District Council with somewhere to put all the garden waste.

In Committee, we debated a number of potentially priority areas in Clause 1(3). I am glad that this one in particular has returned, and I will strongly support it. I would have added my name to it if it had not been so eminently oversubscribed. I am less keen on Amendment 3, the light-pollution amendment, which pales in comparison and importance to this one.

The prior debate on these amendments only explained how important this is. In Committee, the Minister confirmed that our understanding of soils is

“not as complete as it should be.”—[Official Report, 21/6/21; col. 95.]

He begged for more time to gather the necessary data. There is simply no more time to do so: our soils are in a crisis and have only a few harvests left, as we have heard from a number of noble Lords. If it is not a priority, how will we ever gather that data? How will Defra be instructed to gather it? The absence of data is seriously damaging the debate on environmental matters, and it is encouraging a number of extremes.

Take the debate on grass-fed meat and dairy. It is a topic close to the hearts of all Devon farmers. We all agree on the negative impact of indoor lot-fed meat and dairy consuming grain and soya in terrible welfare conditions, but no one knows the net environmental impact of beef and sheep fed on the ancient green pastures of the West Country because the data and the science are not there and everybody has an argument. This was confirmed to me just last week in discussions with an eminent environmental scientist at Exeter University. We really need that data, and this amendment needs to be made to encourage Defra to collect it.

Agriculture Bill

Debate between Earl of Caithness and Earl of Devon

Report stage & Report stage (Hansard): House of Lords & Report: 1st sitting & Report: 1st sitting: House of Lords
Tuesday 15th September 2020 Lords Chamber

[The Earl of Devon (CB) [V]]

My Lords, it is a privilege to follow the noble Lord, Lord Greaves. I agree with much of what he said about public access and the health and well-being benefits thereof. I will speak specifically to my Amendment 2, which changes the ELMS targets in Clause 1(1)(b) from “enjoyment of” to “health and well-being benefits from” the countryside. This goes to the heart of the Bill and what the countryside is for. Is it for our enjoyment or for our benefit?

I apologise for not being present in person, particularly on a day when I have tabled a number of amendments. I am currently in quarantine following a fortnight in California, where it was 116 degrees last week. California is parched by drought. It is ravaged by wildfire and overrun by Covid, exacerbated by a food production system that maximises profit and productivity. There is no doubt that the Californians “enjoy” that remarkable land, but that enjoyment patently does not inure to the benefit of their health, well-being or environment.

This amendment was debated in Committee and many noble Lords supported the inclusion of health and well-being benefits, so I will not repeat myself, but I note that this provision remains unchanged from the original 2018 version of the Bill. This is despite the onset of the worst public health crisis in a century, during which the public health and well-being benefits of our natural environment, and our domestic food supply, have never been more important. It is disappointing that the Government have not seen fit to put the crucial goals of health and well-being on the face of the Bill. However, I am equally concerned at the use of the word “enjoyment”. This is either a wholly subjective term that is inappropriate for legislation, or it has a specific meaning as a property right—the right to quiet enjoyment—which simply cannot be a public good.

I declare my interest, now and for the rest of this Report stage, as a Devon farmer and the holder of certain long-standing feudal rights. I originally trained as a property law barrister and I am very aware that enjoyment of land is a basic freehold right that may be granted to tenants or exercised by bringing a tort claim in nuisance. Is the granting of public property rights what the Government intend to reference in Clause 1(1)(b)? If so, I would not be wholly opposed to that, but it needs to be stated explicitly and would deserve considerably more debate than is available today. I would also question whether that amounts to a public good, given that there is an all-too-vibrant property market at work in this country at the moment.

Equally, if this is merely the dictionary definition of enjoyment—“the taking of pleasure in something”—it is overbroad. As the noble Lord, Lord Greaves, referenced, we have heard much in the news lately of public access and enjoyment, including raves taking place in contravention of lockdown guidance. The participants at those events are undoubtedly gaining public access to, and considerable enjoyment from, the land in question—but it may not be to the good of their health or well-being.

As I stated in Committee, I am a champion of responsible public access to the countryside, but not to the detriment of the environment, the well-being of the public or the private rights of property owners. This provision, as drafted, potentially damages all three. I hope the Minister can provide much-needed clarification on this important issue.

[The Earl of Caithness (Con)]

My Lords, first, I thank the Minister and all those in Defra who have worked so hard between Committee and now to provide us with letters and briefings. The time they have given it is very much appreciated and will hopefully speed up this process.

I will speak primarily to Amendment 5 standing in my name, which seeks to ensure that public access is “granted voluntarily” in the ELM scheme

“by the recipient of that assistance.”

The Minister confirmed this during a virtual session we had the other day, and it is important that he puts it on the record, because there has been some confusion as to whether Defra would be able to impose any of the conditions in Clause 1(1)(a) to (j) as part of giving a grant. If the Minister could assure me that each and every one of them is voluntary, that would be a help.

I support what the noble Earl, Lord Devon, has just said. His wording in Amendment 2 is better than that in the Bill. I also support what the noble Lord, Lord Greaves, said about irresponsible behaviour. It is important to remember that irresponsible behaviour is both ways—both by those who come to the countryside to take exercise and walk along a footpath, and also by the farmer who prevents that for various reasons.

Your Lordships will recall that, in Committee, I went on at some length about litter, which is the blight of Covid-19. I got an email from somebody who said, “You’re absolutely right but don’t forget the farmers, who leave an awful lot of litter around, from their black plastic sacks and other things”—and that is absolutely right. I wrote back to him and said I totally agreed with him. The responsibility has to act both ways, and I hope that the Minister will ensure that it does when the Bill becomes an Act.

I would also like to ask my noble friend about the status of access. If it is a voluntary agreement as part of an ELM scheme, what is the status when that part of the ELM scheme comes to an end? If it is a five-year agreement and there is voluntary access at the end of five years, does that access become statutory or just fade away?

A final thought: when we are talking about access, one of the great things that Covid has shown is that if you give animals and birds a bit of peace, they will come out and show themselves and they will prosper more than when they have humans around. There are certain times of year when the use of footpaths is not helpful to breeding animals and birds, and I hope that there will be a bit of flexibility on both sides to ensure that these rights benefit animals and birds as well as human beings.

Agriculture Bill

Debate between Earl of Caithness and Earl of Devon

Committee stage & Committee: 5th sitting (Hansard) & Committee: 5th sitting (Hansard): House of Lords
Tuesday 21st July 2020 Lords Chamber

[The Earl of Caithness (Con) [V]]

My Lords, the Committee has already heard some powerful speeches. The more the Bill is discussed, the more respect I have for farmers who, in a time of uncertainty, have a future that is even more uncertain than the present. We do not know where ELMS is going; we have not discussed the Environment Bill. We are threatened with ELMS being run by the RPA, whose record we cannot respect hugely. Farmers are, therefore, in a difficult position. As the noble Earl, Lord Devon, said last week, the advice he has received is to stop all investment. That is a terrible situation to be in at this time. Our farmers should be investing but, in the uncertain world we are faced with, the right thing for them to do is sit on their hands. That is going to cause huge problems. I agree with noble Lords who have said that small farmers, particularly hill farmers, face the most problems and are most likely to fall by the wayside as the current situation continues.

I have put my name to Amendment 143, which would delay the process of implementing ELMS for another year. Given what has been said, there is nothing for me to add, except that I support the principle of all the amendments that have been spoken to. I hope that the Government will show some flexibility on these, because the current situation is untenable for quite a number of farmers.

[The Earl of Devon (CB) [V]]

My Lords, I will speak to Amendment 143, to which I have put my name. I too have very real concerns that Defra will simply not be ready for the transition period to begin in 2021 and that farming will suffer as a result. To provide the Government and farmers with sufficient time to prepare for transition, we should start it in 2022, rather than 2021. This way, we can ameliorate the transition chasm that I have discussed before. The House has spent four long days in Committee, debating many variations of ELMS, and has made its way through Clauses 1 and 2 of the 54-clause Bill. We hope to rush through the bulk of this legislation in another two days, under huge time pressure. Scrutiny cannot be sufficient in these circumstances and major aspects of this crucial legislation will be barely considered.

The Government have suggested that time is of the essence and that this Bill simply has to be passed so that the transition period can begin on 1 January 2021. They say that farmers will not be able to be paid if it does not. This is simply not true. It was easy for Parliament to extend direct payments to farmers for 2020; we can simply repeat that process. Given that the Government have confirmed that they will maintain the level of agricultural funding until the end of this Parliament, this will have no negative impact on the Treasury or on budgets. What it will do is permit Defra to prepare for ELMS in an orderly manner.

Despite the best efforts of its overstretched and underfunded staff, Defra is transparently far behind where it needs to be. The EFRA Committee took evidence on 16 June 2020 from Defra’s two leads: Tamara Finkelstein, its Permanent Secretary, and David Kennedy, the director-general of food, farming and biosecurity. I recommend the transcript of their evidence to all noble Lords, as it provides a valuable insight into its much-delayed progress. They admit to considerable delays in the tests and trials programme caused first by Brexit, which took many staff for emergency no-deal planning, and then by coronavirus, which meant that many key tests and trial programmes have not begun.

Defra is triaging. For example, it has confirmed that it has abandoned plans to build a new computer system to administer ELMS. Instead, it will be delivered using the current SITI Agri system, which is used by the RPA to administer BPS. Reading between the lines, it appears that tier 1 of ELMS is effectively going to be little more than BPS plus greening obligations by a new name, administered by the same team, using the exact same technology. I would appreciate the Minister’s confirmation of this.

On Thursday, the Minister helpfully confirmed that Defra would publish a multiannual financial assistance plan this autumn. Given the incredible delays disclosed by Defra, what details is it really able to provide? Will the Minister confirm whether, but for Brexit meaning Brexit, Defra would prefer to agree to this amendment and give itself longer to prepare for the transition?

I warmly support the amendments proposed by the noble Lord, Lord Carrington, which also relate to the transition chasm. However, I cannot support the amendment in the name of the noble Lord, Lord Teverson. ELMS is optional—the quicker the transition, the less uptake there will be and the worse the outcome for our environment.