Environmental Principles Policy Statement

Lord Hodgson of Astley Abbotts Excerpts

Thursday 30th June 2022 Grand Committee

[Lord Hodgson of Astley Abbotts (Con)]

My Lords, as the noble Baroness, Lady Parminter, made clear, I am not a member of her committee, so I shall not say much about the purpose of this regulation other than that, as she explained in her very interesting and wide-ranging speech, it is very significant. It has very significant consequences for the environment, about which so many people feel very strongly.

In my few minutes, I want to concentrate on process. Let me use the hackneyed phrase “You have the hand of history on your shoulder”. This afternoon, noble Lords are creating a precedent. This is the first time we have discussed a statement such as this. The way that it is being scrutinised will be used by the Government as a precedent for why future such arrangements should follow the same routine. It is a precedent which, I regret to have to say to my noble friend the Minister, represents another power grab by the Government and will contribute to the growing imbalance in power between the Executive and the two Houses of Parliament. It is not Lords versus Commons; it is Lords and Commons versus the Government.

As the noble Baroness said, I chair the Secondary Legislation Scrutiny Committee. It is a cross-party committee—the noble Baroness, Lady Bakewell, whom we shall hear from in a few minutes, is one of our number. We have a terrific staff, and we meet weekly to scrutinise the 600 to 700 regulations made every year, each one of which imposes the law on every citizen of this country. We produce reports every Thursday following our meetings on Tuesdays—one has been published today—drawing the attention of the House to issues in the current crop of regulations for the week that we think might be of particular interest to your Lordships.

I emphasise that we are not concerned about actual policy. That is for the electorate to decide when the general election comes. However, we are concerned inter alia about whether the implications of the policy have been thought through, whether it has been adequately consulted on and whether it is likely to fulfil its primary policy objectives. Your Lordships will have seen from our report, which the noble Baroness quoted, that we felt that the regulation fell short of those and other objectives in several significant aspects. In its way, this is another example of the Government’s increasingly cavalier attitude towards Parliament and its duties of scrutiny.

Some noble Lords will recall a childhood game called “Grandmother’s Footsteps”. The child who was it had to face the wall and the other children playing the game would try to creep up behind. The child who was it could turn round at any moment, and if it caught the other children moving, they had to go back to the beginning. I am sure that several members of the Committee will have played that. That is what is happening here. While Parliament is looking the other way, the Government are creeping up on it, and we need to consider what we are going to do about it.

The seriousness of what Parliament faces varies. First, some of the problems could be solved by Ministers taking a better and tougher administrative grip by ensuring, for example, that impact assessments are available every time a regulation comes before your Lordships’ House. Your Lordships will not be aware of this, but last October we gave permission to a Department for Transport SI for which the impact assessment was published six months later, in April. What use is that? Secondly, departments could do a great deal better planning so that fewer instruments arrive in a rush, with the almost inevitable consequence that there has been inadequate consultation.

Some of the problems could be solved by greater clarity in policy, by, for example, distinguishing between regulation—the law—and guidance. I ask noble Lords to cast their minds back to the first month of the Covid outbreak. Do your Lordships remember being told that you could exercise only once a day? That was not true. Exercising once a day was in the guidance. The regulation—the law—put no limit on the number of times you should exercise. There was this wash-over between regulation and guidance, determinations, protocols and all sorts of other semi-legal pieces of government policy.

The Government could also improve things by not increasing the use of tertiary legislation, in which powers are passed down outside Parliament to bodies over which there is no democratic observance or control. The College of Policing, which is extremely important to the way our police service operates, has no statutory role at all but has a great deal of influence in the policy followed in that area.

All the really fundamental challenges come from the Government’s increasing use of what we have come to call framework Bills, in which the statute has only the broadest sense of policy travel and all the detail, which is what really matters to us all, is left to secondary legislation. In essence, the regulation before us is an example of what happens when you have a framework Bill. The parent Act, the Environment Act 2021, will have gone through the careful, helpful, thorough scrutiny afforded to primary legislation, both here in your Lordships’ House and in the House of Commons. But no one then knew the way in which the Act would be brought into force and the detail that would follow.

I take one example from the noble Baroness’s speech a few minutes ago. She talked about the definition of “proportionate”. I ask members of the Committee to hold that word in their mind for a second. The challenge we face with secondary legislation scrutiny is that, while we can discuss it—as we are doing this afternoon—say what is wrong with it and question my noble friend about what he is going to do about it, no matter how unsatisfactory his answer is, we cannot amend it. We can only accept or reject it. Since the latter is a pretty nuclear option, not surprisingly your Lordships’ House has been reluctant to finger the reject button.

I go back to the word that I asked the Committee to hold in their mind a minute ago. If “proportionate” had been in the primary legislation, think of the discussion there would have been about it and what would have gone on in the House. There would almost certainly have been some amendments about it, some definitions sought and clarity requested. The Government’s thinking would have been teased out in all sorts of ways. This afternoon, an hour from now, it will be through—done and dusted. The House will have no further say about it except and until a Minister—I do not mean my noble friend—says, “Well, I think we’ll change this a bit and put through another regulation”, which we will also be able to discuss and debate but not change. I hope my noble friend’s officials will not pass him a note saying, “Minister, when you come to wind up, just remind the Committee that all the regulations have to be approved”. They do, but the way they have to be approved is a sophistry. There is no reality to it at all.

Why are these draft framework Bills being brought forward? First, the world is moving faster and the rather stately pace of primary legislation is finding it hard to keep up. I recognise that. Secondly—and perhaps less attractively—the Government have brought forward legislation on which they have not been able or willing to undertake the intellectual heavy lifting to think through the policy before the parent Bill is brought before your Lordships’ House. It is a policy you might describe as making it up as you go along. Thirdly—and worst of all—Ministers are seduced by their civil servants, who say, “Minister, don’t let’s write this into the primary legislation. It is awfully inflexible if we do. Let’s just take some powers and then if we don’t like it, we can change it. We know neither House can amend those regulations, whereas if the primary Act gets stuck, goodness me, there’s going to be trouble. We’d need a new Act and the Prime Minister will ask why we’re stuck on this silly thing and who got it wrong in the first place.” Therefore, the tendency is to let this all pass by and appear at a lower level, as we are seeing this afternoon.

I said I have some sympathy with the view that the world is moving faster and primary legislation cannot keep up. But if the Government want to grab a little, as they are doing this afternoon, they need to give a little. They must help establish a new procedure for scrutinising framework Bills. In fact, I do not mean framework Bills but Bills in which there are framework clauses. Most of what we do with secondary legislation is fine, but there are an increasing number of areas—we have seen some this afternoon, as set out in the speech from the noble Baroness, Lady Parminter—where we need the ability to dig in and, where necessary, amend.

I said at the beginning of my remarks—I must end them shortly—that this regulation represents a precedent. Well, we are going to see a lot of precedents in the next few months. We have the Schools Bill, the Online Safety Bill and the Brexit freedoms Bill. If that is as I am told, I do not think that those who voted for Brexit, saying that it would mean we were taking back control, thought that meant taking control from Brussels and handing it to Whitehall without Parliament even seeing it on the way through, but that is what that Bill sounds as though it will do.

My noble friend the Minister may be tempted to respond by saying to me, “Look, guv, it is nothing to do with me. I am a junior Minister in Defra and this is all above my pay grade. This is the wrong speech to be making here; go to the Cabinet Office and try it again.” With great respect to my noble friend, I am afraid he is wrong. The bedrock of our democratic system is trust and confidence, leading to the key ingredient of informed consent. Every government Minister has a duty and role to make sure that principle of informed consent is adhered to and strengthened. These regulations, the Schools Bill, the Online Safety Bill and the Brexit freedoms Bill are stretching that principle of informed consent to breaking point, and so risk undermining public confidence in the way our governmental system operates. I am sure the Committee and, I hope, my noble friend accept that that would be a disastrous outcome.

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[Baroness McIntosh of Pickering (Con)]

My Lords, I am delighted to follow the noble Baroness and her eloquent, thoughtful contribution. I congratulate the noble Baroness, Lady Parminter, on giving us this opportunity to debate the first statement on environmental principles.

I start by following some of the points my noble friend Lord Hodgson of Astley Abbotts contributed. In particular, I look forward to hearing my noble friend’s response to the call of the Secondary Legislation Scrutiny Committee’s report. It says in paragraph 40 that, as

“this is the first policy statement under the Act, it is essential that the practical implementation and effectiveness of the policy statement … be properly monitored and evaluated by all government departments”.

That was touched on by most of the contributions this afternoon.

When I was in the other place chairing the EFRA committee, I was at my wits’ end because so many of the regulations that came through were from Europe, and we could only—as my noble friend has explained—rubber-stamp them. They contained all the policy provisions. As we know, we often gold-plated them. One of the benefits of leaving the European Union is that we can no longer gold-plate policy from that particular quarter. It is very important, as my noble friend Lord Hodgson explained, that we have the opportunity to think through—this is the role of that committee—not only whether the policy has been adequately consulted on but whether it fits in with the primary policy objective. So often we find that not to be the case.

We have taken an awful lot on trust in the last two years. We have adopted very important Acts of Parliament with huge powers under Henry VIII clauses. Possibly—I say this as a very brave Back-Bencher—we ought to take the nuclear option more often, because we are imposing real obligations on businesses. I am thinking in particular of farmers and landowners. Perhaps we will leave it to the main opposition parties to do that on more occasions and we can cower behind them.

My noble friend came out with this idea of having a new procedure to scrutinise these framework Bills in the first place, but surely we could just make more use of the procedure we have of considering draft Bills. It is incumbent on the Government to explain why we are not using that procedure. We are running into enormous problems in this Session as well, where we have passed down the opportunity to consider things at the stage of a draft Bill. Perhaps ask a scrutiny committee or a Select Committee in each House to do this as part of their regular work. I am sure the noble Baroness, Lady Parminter, and her committee would do that.

[Lord Hodgson of Astley Abbotts (Con)]

I absolutely accept what my noble friend says. I was not suggesting that this was the only way to skin the cat; I was just trying to say that this was one way it could be skinned. The important thing is to get a discussion going about the fact that the cat needs skinning. We have not got to that but we need to get to it. The procedure is of secondary importance; the first thing is to persuade the Government and the Opposition Front Bench that this issue needs addressing.

[Baroness McIntosh of Pickering (Con)]

I put on the record that I do not wish to skin any cat, for obvious reasons. I am just trying to support my noble friend’s proposal and the noble Baroness. Peace has broken out on the Committee.

I congratulate the noble Baroness, Lady Parminter, on the ground she covered in her opening remarks. I do not wish to comment where I agree, but I take issue with one thing—my noble friend the Duke of Wellington is very aware of this. I believe it is unacceptable to continue to have the possibility of raw sewage entering the river or bathing waters at an earlier stage. I know this is a different department; this is one of the problems we have identified this afternoon. If you are to have a commitment, which I think all parties agree to, of building 300,000 houses a year on land that is prone to flooding, in inappropriate places and connected to pipes that are not fit for purpose—the Government and the department accept that they are Victorian pipes—we need to allow a massive investment in the next AMP round, the price review in 2024, for the water companies to do this. I challenge my noble friend to bring forward Section 23 of the Flood and Water Management Act 2010 to enable us to do so. In 2007 Michael Pitt called for an end to the automatic right to connect. It is inappropriate that someone living in an existing development should face the possibility of raw sewage coming into their home because the wastewater does not fit into the existing pipes. We have to end this disgusting practice, and now.

I am a big supporter of Surfers Against Sewage but it is missing the point. We are dealing with this at the wrong stage, and much as I welcomed my noble friend the Duke of Wellington’s amendment, that is too late. If we have this housing commitment—I do not disagree with it; I just do not know where all these people are coming from—we need the investment in wastewater. Bring forward Schedule 3, give us a date and ensure that we end the automatic right to connect with no provisos, ifs or buts—just completely end it—allow water companies to disconnect until the investment has been made and recognise water companies as statutory consultees. Then we will no longer be pumping raw sewage into rivers and bathing waters in the first place. I shall calm down now.

I invite my noble friend and the department—as my noble friend Lord Hodgson asked us—to make sure that there is joined-up thinking between the different policies coming out of one department. I make a plea that food production, as the NFU president asked for today, be recognised as a top priority of the department. I have heard my noble friend either respond to Questions or make Statements in this regard on a number of occasions and I wholeheartedly support him in that, but we are currently only on 60% self-sufficiency in food. The NFU pointed out today in the publication of its survey that farmers’ confidence to invest has been severely dented by all the reasons the noble Baroness, Lady Boycott, rehearsed before us this afternoon. It has been dented by the spiralling costs of energy and fuel in this country, which are not within our control; they are the result of the war in Ukraine. That is a challenge to the Government; we have to have more storage of gas. We cannot have just 30 days —or was it 60 days?—of storage. It is clearly insufficient before we go into another autumn.

How does my noble friend respond? I invite him to support the call from the NFU for the Government to introduce a duty on Ministers to assess the impact of any new policy—I take the environmental statement of principles to be a new policy—on food production.

The survey results from the NFU show that a third of arable farmers have made changes to their cropping plans in the last quarter or four months, which 90% of growers attributed to rocketing fertiliser costs. Growers are now switching from growing milling wheat for bread to growing feed wheat for animals, because it has a lower fertiliser requirement. Also, over the next two years dairy farmers were most concerned about prices of feed, with a 93% increase; fuel, with a 91% increase; energy, with an 89% increase; and, as my noble friend the Minister knows, fertiliser, with an 88% increase.

Why is this important? As we consider the environmental principles policy statement today, the Government are putting the finishing touches—I hope—to the environmental land management schemes. The noble Baroness, Lady Boycott, has spoken eloquently on this on a number of occasions. There are simply too many competing uses for land. Will my noble friend confirm that farming and food production are public goods for the purposes of environmental land management schemes, and that the five environmental principles before us—the integration, prevention, rectification, polluter pays and precautionary principles—will have a crossover to ELMS, with the sustainable farming incentive, local nature recovery and landscape recovery uses? Without that, it will be totally confusing for our farmers and growers to know what they have to do.

I welcome the opportunity to debate these issues today. I hope we will be able to give confidence to farmers, growers and consumers and have greater clarity, not just on what the environmental principles will be but on how these will impact on ELMS and other aspects of Defra work.