Environment Bill

Debate between Lord Berkeley and Lord Krebs

Committee stage
Monday 28th June 2021 Lords Chamber

[Lord Krebs (CB)]

My Lords, I strongly support the amendments in this group that aim to strengthen the role of environmental principles, including Amendments 73, 75, 76, 77 and 78. When we started out on this journey towards an environment Bill, we were told it would be a non-regression Bill. I thought the idea was not only to maintain but to strengthen environmental protections after leaving the European Union. Yet Clauses 16 to 18, as the noble Baroness, Lady Parminter, explained so clearly, appear to weaken environmental protection in at least three ways: first, by weakening the legal effect of the environmental principles—since instead of acting in accord with the principles, there is only a much weaker duty to “have regard” to them; secondly, by introducing proportionality in the application of the principles, suggesting that they may be compromised for other priorities; and thirdly, as a number of noble Lords have pointed out, by exempting many public authorities, including two government departments that were specifically referred to.

I shall focus on Amendment 78 in the name of the noble Baroness, Lady Parminter, and others, and on Clause 16(2). Can the Minister explain why he considers the introduction of proportionality necessary, when the precautionary principle, according to the High Court, already includes proportionality? I strongly disagree with the noble Baroness, Lady Neville-Rolfe, and the noble Viscount, Lord Trenchard, and I hope this example will help to explain why there is no need to replace a precautionary principle with a proportionality principle.

I refer to the High Court judgment of 28 May 2021 in the case of Natural England applying the precautionary principle in relation to nitrogen loads in the Solent. In his decision in favour of Natural England, Mr Justice Jay said that Mr Elvin, who was representing Natural England

“also submitted that the precautionary principle embodies both proportionality and a degree of inherent flexibility to reflect the nature of the harmful outcome. … If all that Mr Elvin was submitting was that in some circumstances it would be close to impossible to obtain precise scientific data and consequently it may be appropriate, as well as proportionate, to draw from generic data and experience in analogous situations, I would agree with him. … But that is the whole point of the precautionary principle: the uncertainty is addressed by applying precautionary rates to variables, and in that manner reasonable scientific certainty as to the absence of a predicated adverse outcome will be achieved, the notional burden of proof being on the person advancing the proposal.”

There is no need for a principle of proportionality according to the High Court; the precautionary principle includes proportionality. I look forward to the Minister’s response to this example.

Finally, I refer to the extended list of environmental principles in Amendment 75 in the name of the noble Baroness, Lady Jones of Moulsecoomb. One principle in the extended list is the

“use of the best available scientific knowledge.”

I do not understand why that is not in the Government’s list, because it is surely uncontroversial that the best scientific evidence should be used to make determinations about environmental matters. Good science is particularly important since many key scientific matters—the safety of certain pesticides, for example—are hotly contested. It is important that we have a good understanding of where the certainties and uncertainties in the science lie. I look forward to the Minister’s response.

[Lord Berkeley (Lab)]

My Lords, I support some of the amendments in this group in the name of the noble Baroness, Lady Jones of Moulsecoomb, and others. I support the views of the noble Lord, Lord Krebs, who just spoke about the importance of the list of environmental principles contained in Amendment 75.

We are in danger of having a debate over a more detailed list, that some noble Lords have said may be unenforceable, and a higher-level list which, sadly, many people would say was a bit like motherhood and apple pie and probably unenforceable for that reason. I think the list in Amendment 75 is extremely good. But, as other noble Lords have said, environmental interests can conflict with commercial interests, even if they are hidden by something that is called “environment.” A debate can sometimes use pretty abstruse environmental information to put forward an argument that is not necessarily compliant with everything that should be on this list.

I was involved in the Aarhus convention some years ago, and that seems to sum this up. It is a great shame we do not have it and it has to go back in here if this amendment is accepted; it is about public participation and how to extract information from Governments and public bodies wishing to hide it until it is too late to cause any problems. It is very important to put this in more detail in the environmental principles.

I am also concerned about exemptions. The noble Baroness, Lady Boycott, and my noble friend Lady Young of Old Scone mentioned the example about trees, which was quite frightening. Some friends from Plymouth who live next to one of the muddy creeks said that the MoD turned up with a jack-up barge a few weeks ago. They asked, “What is this jack-up barge doing? This is mud, which is quite environmentally friendly—there are lots of birds, fish and everything else,”. The MoD said, “We are going to put a large pylon in to help the submarines go into one of the docks in Plymouth.” My friends asked, “Shouldn’t you have told anybody? Shouldn’t you have told the local council? Shouldn’t you have consulted the residents along this little muddy creek?”

They ended up having three public meetings about this, with the top brass of the Navy turning up with an ever-increasing number of stripes on their arms to say how important this particular pylon was. They said in reply, “Anybody who knows anything about pilotage or moving big ships knows that you do not need this anyway, so why are you doing it? You’re supposed to be the experts”. We can go into the navigation issues, but that does not really matter. The point is that this is another example of the MoD trampling over people. If my friends had not phoned up those at the council and asked whether they knew about this—oh no they did not—it would have gone ahead, and they would have had a great big pylon in the middle of a rather nice creek which was quite happy as it was.

Unfortunately, the MoD has a reputation for not always consulting and not always thinking about whether something is really necessary. My view on so much of this is that we say it is necessary for A, B or C—and the noble Baroness, Lady Neville-Rolfe, said that we have to move forwards, or something like that—but we must occasionally think “Can we do without it?” We do not have to go back to the horse and cart, but life and the environment might be much better if we did do without it.