Office for Environmental Protection

Lord Krebs Excerpts

Tuesday 23rd January 2024 Lords Chamber

Asked by

[Lord Krebs]

To ask His Majesty’s Government what assessment they have made of the second annual progress report of the Office for Environmental Protection, published on 18 January.

[The Minister of State, Department for Environment, Food and Rural Affairs, and Foreign, Commonwealth and Development Office (Lord Benyon) (Con)]

My Lords, I refer to my interests as set out in the register. This Government are committed to leaving the environment in a better state than we found it. The Office for Environmental Protection’s report covers the period from 1 April 2022 to 31 March 2023. This includes the first two months of the 2023 environmental improvement plan and our new long-term environmental targets. The OEP’s 200-page report recognises the scale of ambition in the EIP 2023, including our challenging interim targets. We will study it carefully and respond in due course.

[Lord Krebs (CB)]

I thank the Minister for his response. When Dame Glenys Stacey, the chair of the OEP, launched her report last week, she said that the OEP’s job was to hold up a mirror to the Government for them to assess their progress. I am afraid to say that the view in the mirror was not a pretty sight. As was mentioned in yesterday’s Oral Question, the OEP concludes that the Government are largely failing to meet the statutory and other targets they have set for environmental improvement. The Government’s response seems to be either to reject or to reinterpret what the OEP said. Would it not be better to acknowledge what the OEP has said, recognise that things are not necessarily going as well as they should, learn lessons and try to adopt a different tack?

[Lord Benyon (Con)]

I absolutely concur with the noble Lord in that we treat anything that comes from the OEP very seriously. I seek to reassure noble Lords that it is not our position to dismiss it in any way. As I said in my original Answer, the report refers to just two months of the environmental improvement plan, which sets out some very demanding targets and holds the Government to account for them. The noble Lord and I are meeting next week, when I will set out some of the things we are doing as a result of the EIP and other measures. I think he will be reassured that the report that looks at a full year of the EIP’s implementation will show the Government’s ambition and how we are responding to reasoned criticism and being held to account by a very well-led organisation.

Food Insecurity: England

Lord Krebs Excerpts

Tuesday 7th June 2022 Lords Chamber

[Lord Goldsmith of Richmond Park (Con)]

My Lords, I first acknowledge the work that went into that report. It was a brilliant piece of work and I am grateful to the team behind it, not least Mr Dimbleby. I hope, as I know the noble Baroness does, that the Government will provide a proper and comprehensive response, as soon as possible.

[Lord Krebs (CB)]

My Lords, I quote from a government report that came out in July 2021. It reported that the data show that promotions of food in supermarkets

“increase consumer spending by encouraging people to buy more than they intended to buy in the first place.”

In light of that, does the Minister agree that it is time to stop these promotions, as part of the contribution to helping people to manage their food budgets more effectively?

[Lord Goldsmith of Richmond Park (Con)]

My Lords, I am aware of the study the noble Lord cites, but I do not pretend to be an expert in this area. The Government’s view is that the proposed policy to inhibit, for example, “Buy one, get one free” offers has been postponed to provide immediate relief for those people facing acute food insecurity and poverty. The policy has not been abandoned; it has simply been parked.

Environment Bill

Lord Krebs Excerpts

Consideration of Commons amendments
Tuesday 9th November 2021 Lords Chamber

Moved by

[Lord Krebs]

Leave out from first “do” to end and insert “insist on its disagreement with the Commons in their Amendments 31A and 31B on which the Commons have insisted for their Reason 31D, do not insist on its Amendment 31C in lieu to which the Commons have disagreed for the same Reason, and do propose Amendment 31E in lieu—

31E: Clause 24, page 14, line 30, leave out subsections (1) and (2) and insert—
“(1) The OEP has complete discretion in the carrying out of its functions and in preparing and publishing its budget (but subject to this section).
(2) The Secretary of State may issue guidance to the OEP on the matters listed in section 22(6), but this should not include matters relating to the enforcement of environmental law against the Secretary of State for Environment, Food and Rural Affairs.
(2A) The OEP must have regard to the guidance in preparing its enforcement policy, unless there are material considerations that indicate otherwise.””

--- Later in debate ---

[Lord Krebs (CB)]

My Lords, I thank the Secretary of State, the Minister and the Bill team for the very helpful discussions that I have had with them throughout, and particularly during the last week. In spite of this, here I am with a further amendment, and I feel slightly embarrassed to be pressing yet again on the matter of the independence of the OEP. However, the strength of opinion across this House was clear at the first stage of ping-pong, when my amendment passed with a majority of 51.

The Government clearly have an umbilical attachment to the guidance powers in Clause 22, and my amendment makes a major concession in that it does not seek to remove the guidance power. I expect that there will be some noble Lords who believe that this concedes too much. However, the proposed new subsection (2) in the amendment would introduce a specific constraint on the Secretary of State in issuing guidance, namely that guidance cannot be issued on

“matters relating to the enforcement of environmental law against the Secretary of State”.

The aim of this subsection is to prevent the Secretary of State having a conflict of interest. Without it, he or she could, in effect, mark their own homework.

The proposed subsections (1) and (2A) of my amendment state that, in spite of any guidance, the OEP

“has complete discretion in the carrying out of its functions”,

and that, while it

“must have regard to the guidance”,

the OEP does not have to follow it if

“there are material considerations that indicate otherwise.”

These subsections are designed to ensure that the OEP has the operational independence that we all want, in spite of the guidance power.

I turn to the Minister’s opening speech and quote back two key sentences. The first is:

“It would also be inappropriate for the Secretary of State to issue guidance on specific matters relating to the enforcement of environmental law against the Secretary of State for Defra, given that there would be a conflict of interest.”


The second is:

“the OEP would be expected to have regard to any guidance issued, but it retains the ability and discretion to make its own decisions and is not bound to act in accordance with the guidance where it has clear reasons not to do so.”

Although the wording is slightly different from my amendment, the implications of the points made in the Minister’s speech are more or less identical. I hope that, later in this debate, the Minister will confirm that my interpretation is indeed correct. The only piece that is left out is the OEP setting its own budget, but there are some other safeguards in other parts of the Bill.

I consider it a great pity that the Government were not prepared to accept my amendment, as the Minister’s speech implies that its intent has indeed been accepted. However, as the Minister stated at the start of his speech, ministerial statements in Hansard could be used by the courts in future as an aid to statutory interpretation. I look to the lawyers, because it is well above my pay grade to judge the value of that statement and, therefore, whether what we have heard is a sufficiently robust protection for the OEP’s independence.

The Minister also made three other important points that respond to earlier concerns expressed about the guidance power. First, the guidance power could not be used to preclude the OEP from investigating a broad category of cases. The example I used in an earlier debate was new nuclear power stations. Secondly, it is up to the OEP to decide whether cases have national implications. For instance, a case that has specific and local implications, such as the destruction of a unique habitat, could also be of national significance. Thirdly, the Secretary of State will not issue guidance to the OEP before the initial setup and before the OEP has had a chance to develop its own enforcement policy.

I thank the Minister for his speech. I believe that we have converged on a way forward that protects the operational independence of the OEP. The solution may not be perfect, but it gives me some reassurance on this absolutely central plank of the Bill. I beg to move.

[Lord Cameron of Dillington (CB)]

My Lords, it appears that there has been some sort of rapprochement—albeit, I suspect, reluctant. On the one hand are us, from all sides of the House of Lords, who wish to see a strong and independent OEP; on the other side is the current Defra team, which still, I get the impression, wishes to guide its activities as far as is politically possible. It would appear that we are gradually getting closer together. Sadly, however, we are not seeing a total volte-face by the Government, as we have over sewage and CSOs—or, for that matter, on breaches of parliamentary rules on lobbying.

Unfortunately, the independence of the OEP, a body that has yet to exist, is a concept too esoteric for the public to even know about, let alone to get hot under the collar about. If they knew about it, bearing in mind the Government’s behaviour in recent weeks, I should have thought that they would be concerned that future Secretaries of State could be exercising guidance over this body, whose primary function, let us face it, is to hold the Government, its Ministers and their quangos to account.

As my noble friend Lord Krebs said, his Motion A1 is very much in line with what my good friend Rebecca Pow, the Minister in the other place, has already said on the Floor of that House, as echoed by the Minister in this House today. It would have been good to get it on the face of the Bill to make the sentiment more certain and, above all, more durable, because that is really what matters. Bearing in mind that we are unlikely to get another environment Bill for some decades, I for one would have preferred us to move beyond just the commitments of this excellent team of Ministers and to a properly constituted, independent OEP that will stand the test of time. However, although I strongly support the amendment in the name of my noble friend Lord Krebs, I recognise that the rapprochement we have achieved is now probably as far as we are going to get.

--- Later in debate ---

[Lord Goldsmith of Richmond Park]

I am so sorry—I have just transferred that brilliant joke to another party. It may have been a brilliant joke but there was some truth in it—many a truth is told in jest, as someone said. The noble Baroness, Lady Hayman, makes a very good point, but I genuinely believe that the work of this House has removed much of the pong, and the ping-pong has, as a result, improved the Bill considerably. I genuinely thank her and others across the aisle for the work that they put into this.

I equally thank my exceptional private office staff, who have worked above and beyond the call of duty. This has been a very long process; it is one of the biggest Bills we have had to deal with. They have been working—in some cases—around the clock and I am very grateful to them and of course to the Bill team, who have been absolutely superb and extraordinarily patient, not just with colleagues in this House but with Ministers. I really appreciate their efforts and I look forward—as I know many in this House do—to the Bill continuing the crucial work that we have already begun to restore our appallingly depleted natural environment, improve the quality of our air and water, and end the scourge of plastic waste pollution. I commend this Motion to the House.

[Lord Krebs (CB)]

My Lords, I thank all those who have taken part in this debate and will reiterate something that was said at earlier stages of the Bill. The amendments I have been involved in, and many of the others, have been genuinely across all groups, and it has been a particular pleasure for me to work not only with the noble Baronesses, Lady Jones of Whitchurch and Lady Parminter, but with colleagues on the Conservative Benches: the noble and learned Lord, Lord Mackay of Clashfern, the noble Lord, Lord Duncan of Springbank and others. The concerns we have expressed are not partisan: they are genuine concerns about wanting to improve the Bill and protect the environment for our grandchildren and generations to come.

I also thank the Minister. In his reply, he did indeed utter the words I was hoping he would: namely, that the Government’s intention is to protect the operational independence of the OEP. I am very grateful to him for confirming that.

In concluding, I think that the noble Lord, Lord Cormack, said it far more eloquently and succinctly than I could. We have worked hard to try to improve the Bill and we have made significant gains, but there comes a point at which we say, “Enough is enough. We have done the best we can. We have brought our experience and expertise to bear on the Bill and we think we have got about as far as we can. It may not be perfect, but it is better than it was when we started.” On that basis, I beg leave to withdraw Motion A1.

Motion A1 (as an amendment to Motion A) withdrawn.

Environment Bill

Lord Krebs Excerpts

Consideration of Commons amendments
Tuesday 26th October 2021 Lords Chamber

On that basis, I am grateful for what the Minister has offered—a letter of reassurance. I hope that he can see that, again, I am trying to be consensual. If those words are in there, I will be temporarily reassured, but please be mindful: this is not an issue that will go away.

[Lord Krebs (CB)]

My Lords, I rise to speak to Motion F1, which would amend the government Motion F. I also support Motion G1, which we will come to shortly. The issue at stake with my amendment is simply this: does the Bill give the office for environmental protection sufficient independence to allow it to fulfil its function of holding public authorities, including Ministers, to account in relation to breaches of environmental law?

Clause 24 gives the Secretary of State wide-ranging powers to issue guidance to the OEP on the matters listed in Clause 23(6). These include whether a failure to comply with the law is “serious”, how the OEP determines

“whether damage to the … environment or to human health is serious”,

how the OEP exercises its enforcement functions

“in a way that respects the integrity of other statutory regimes”,

how the OEP intends to “avoid … overlap” with relevant ombudsmen and

“how the OEP intends to prioritise cases.”

The Bill also gives the Secretary of State powers to determine the budget of the OEP and to hire and fire the board, including the chair. Many of us feel that this does not add up to creating a truly independent watchdog.

Therefore, on Report, I moved an amendment, with support from across the House, to rewrite Clause 24 in order to ensure that it gave independence to the OEP in its enforcement role and budget. It also gave parliamentary oversight of both the budget and the hiring and firing of board members. This amendment was passed by a majority of 29. The Government proposed an alternative amendment that would have involved more consultation with Parliament but did not remove the guidance powers or change the substance of Clause 24. This amendment is essentially the same as Amendments 31A and 31B that we have in front of us today.

In the other place, on 20 October, my amendment was rejected, in spite of the fact that, according to my reading of Hansard, the speeches that referred to it strongly supported it. In her response, Minister Pow made three points. First, she said that paragraph 17 of Schedule 1 requires the Secretary of State to “have regard to” to the OEP’s independence. But we all know that “have regard to” is a weak requirement.

Secondly, she said that the Secretary of State cannot intervene on “specific … cases”. But by intervening on a category of cases—say, new nuclear power stations—the Secretary of State could, in theory, preclude the OEP from investigating a whole raft of individual cases within that category; for example, if it was advised that it is not a priority.

Thirdly, Minister Pow said:

“The OEP does not have to follow the guidance where it has clear reasons not to do so.”—[Official Report, Commons, 20/10/21; col. 823.]


It is a bit paradoxical to justify the existence of the guidance power by saying that the OEP does not have to take any notice of it. Furthermore, you could argue it would be a brave OEP that ignored the guidance from the individual who has the power to determine its budget and hire and fire the board, including the chair.

I am still not satisfied that the Bill will protect the independence of the OEP without further amendment. This new amendment—my Amendment 31C—is a genuine attempt at compromise, and I hope the Government will recognise this and therefore accept it. Let me briefly summarise. Subsection (1) sets out that the OEP has complete discretion in relation to its enforcement policy and functions and in preparing its budget. This would make it comparable to the Office for Budget Responsibility and the National Audit Office. Subsection (2), importantly, retains the guidance power for the Secretary of State but narrows its focus to certain strategic issues concerned with enforcement, as described in Clause 22(6)(c). Subsection (3) requires the OEP to have due regard to the guidance but allows for circumstances in which it may choose to disregard it. Subsections (4) and (5) refer to consultation and parliamentary scrutiny of the guidance, and subsection (6) involves the relevant parliamentary committees in the hiring and firing of board members.

The long-term success or failure of this Bill will in large part be measured by the effectiveness of the office for environmental protection. All the good intentions of the other parts of the Bill could come to naught without a fully independent watchman. We all had high confidence in and high regard for Dame Glenys Stacey, and for her board. We also have high regard for and confidence in the good intentions of current Defra Ministers. But I believe we have to prepare for the long term and that this amendment is fundamental to protecting the OEP’s independence in the long term.

[Baroness Ritchie of Downpatrick (Lab)]

My Lords, I will be brief, as this issue has been debated thoroughly at previous stages of the Environment Bill. I rise to move my Amendment 75C, under Motion N1, which would replace government Amendments 75A and 75B. This mirrors Amendment 31C, proposed by the noble Lord, Lord Krebs, and would achieve the same outcomes for the OEP’s independence in Northern Ireland as his would for the OEP in England.

My amendment would safeguard the OEP’s independence in the long term by amending the power of DAERA to guide how the OEP will hold Ministers to account on any environmental wrongdoings, to make it more targeted. It would also provide the OEP with complete discretion to undertake its activities in Northern Ireland and establish a role for the Assembly’s AERA Committee in overseeing the appointment of the Northern Ireland member on the OEP’s board. As the noble Lord, Lord Pannick, said on Report:

“If the Government accept that the OEP should have complete discretion, surely a matter of this importance should be in the Bill.”—[Official Report, 18/9/21; col. 886.]


The recent DAERA consultation in Northern Ireland on environmental plans, principles and governance indicated strong support for the establishment of the OEP in Northern Ireland. I am in no doubt that that will be a huge boon for our environmental governance, but unless its independence is enshrined for the long term in this Bill, we will have missed a serious opportunity to ensure that this important new body is protected from future political whims. I say that with great reluctance, but we have to consider the political dynamics that exist in the Northern Ireland Executive and the Northern Ireland Assembly. As the EFRA Committee chair Neil Parish MP said in the other place last week,

“we need to ensure that those offices are independent for all time.”—[Official Report, Commons, 20/10/21; col. 804.]

In summary, I disagree with the Government’s amendments in respect of the OEP in Northern Ireland and the need for it to be independent, and I hope the Minister will change his mind on this issue.

--- Later in debate ---

Moved by

[Lord Krebs]

Leave out from “31” to end and insert “, do disagree with the Commons in their Amendments 31A and 31B, and do propose Amendment 31C in lieu—

31C: Leave out Clause 24 and insert the following new Clause—
“OEP independence
(1) The OEP has complete discretion in the carrying out of its functions, including in—
(a) preparing its enforcement policy,
(b) exercising its enforcement functions, and
(c) preparing and publishing its budget.
(2) The Secretary of State may issue guidance to the OEP on the matters listed in section 22(6)(c).
(3) The OEP must have regard to the guidance in preparing its enforcement policy, unless there are material considerations that indicate otherwise.
(4) Before issuing the guidance, the Secretary of State must—
(a) prepare and consult on a draft,
(b) lay the draft before Parliament, and
(c) publish a response to the consultation.
(5) The Secretary of State must publish the guidance when it comes into effect.
(6) In making or terminating appointments under paragraph 1 and paragraph 5 of Schedule 1, the Secretary of State must obtain the consent of the Environment, Food and Rural Affairs and Environmental Audit Committees of the House of Commons.””

Child Poverty: Nuffield Foundation Review

Lord Krebs Excerpts

Tuesday 19th October 2021 Lords Chamber

[Baroness Stedman-Scott (Con)]

Nothing would make my heart sing more than everybody having access to a family hub. At the moment, there is £34 million for those hubs. We are doing great work with them. I have decided, because I thought that family hubs would come up today, to do an all-Peers briefing on them so that noble Lords can hear exactly what we are doing and ask all the questions they wish.

[Lord Krebs (CB)]

My Lords, a five year-old boy in Blackpool can expect to live for 53.3 years in good health, compared with 71.9 years for a boy born in Richmond—a truly shocking gap of 18.6 years. Last year’s report of the Select Committee on Food, Poverty, Health and the Environment made recommendations for reducing that gap. As part of their levelling-up agenda, how many of those recommendations have the Government implemented?

[Baroness Stedman-Scott (Con)]

The statistic shared by the noble Lord is sobering. Again, not wishing to sidestep the issue, I will need to go to the relevant department to make sure that he gets an answer. I will make sure that it is shared with noble Lords.

Nutrition for Growth Summit

Lord Krebs Excerpts

Wednesday 13th October 2021 Lords Chamber

[Lord Ahmad of Wimbledon (Con)]

My Lords, my noble friend speaks with great insight and expertise. Let me assure her that the Government have worked with other key donors to promote adoption of the new OECD nutrition policy marker. Indeed, the UK’s 2019 ODA spend data that was published recently included the nutrition policy marker for the first time. She makes an important point, and it is very much part of our thinking.

[Lord Krebs (CB)]

My Lords, are the Government prepared to show global leadership by tackling the massive problem of malnutrition in this country, in particular by bringing forward a food Bill in response to the recent Dimbleby report?

[Lord Ahmad of Wimbledon (Con)]

Speaking to foreign policy, it is always important that, when we stand up and raise issues of prioritisation on the international stage, we do not forget what is happening at home. The noble Lord makes an important point, which I will discuss on my return with colleagues across other departments.

Environment Bill

Lord Krebs Excerpts

3rd reading
Wednesday 13th October 2021 Lords Chamber

[Baroness Jones of Moulsecoomb (GP)]

My Lords, I agree with the Minister that this Bill, as it stands now, is ambitious. But the Bill we had originally was a terrible Bill and that is why we so heavily amended it—it is quite unusual to amend a Bill to this extent. I hope that the Minister is going to push very hard, with the Treasury and his colleagues in the Commons, to make sure that they take out very few, if any, of our amendments.

[Lord Krebs (CB)]

I thank the Minister and the Defra officials, who have engaged with me and many other noble Lords very constructively during the passage of this Bill through your Lordships’ House.

I echo the point just made by the noble Baroness, Lady Jones of Moulsecoomb: the amendments that have been passed in this House have significantly improved the quality of the Bill. An important point to note is that the amendments had almost universal support from all groups in your Lordships’ House. They were not party-political points; they were points made by those of us who believe passionately in the protection of the environment, now and in the future, to leave a better environment for our children and grandchildren than we have at the moment.

I hope, therefore, as the noble Baroness, Lady Jones, has said, that the Minister will do his very best with his colleagues to ensure that the majority, if not all, of the amendments survive their consideration in the Commons and that we do not have to start the arguments all over again at ping-pong in a couple of weeks’ time.

[Baroness McIntosh of Pickering (Con)]

My Lords, I congratulate my noble friend the Minister on what was, I think, his first Bill in this House, and my noble friend Lady Bloomfield, as well as the Bill team, who went the extra mile. I particularly pay tribute to my noble friend for the amendments that he brought forward, which is always quite an achievement for a Minister in this place.

I would like to press him a little bit further on reaching a balance, particularly in catchment management and the prevention of combined sewer overflow, an issue to which I am sure we will be returning. We have already seen substantial floods in this country and elsewhere, no doubt due to climate change, and I welcome the provisions of this Bill that will undoubtedly help to reduce that in the future.

I support my noble friend the Duke of Montrose in his comments. I will raise these issues further in the context of the debate on the common frameworks agreement later today.

I want to take the opportunity to congratulate my noble friend the Minister on bringing us to this stage, and to wish the amendments that we have carried a safe passage back to us when the Bill returns to this House from next door.

Environment Bill

Lord Krebs Excerpts

Report stage
Wednesday 15th September 2021 Lords Chamber

Moved by

[Lord Krebs]

99: After Clause 109, insert the following new Clause—
“Habitats Regulations: limits on powers to amend
(1) The Secretary of State may only make regulations under section 108 or 109—(a) for the purposes of—(i) securing compliance with an international environmental obligation, or(ii) contributing to the favourable conservation status of species or habitats or the favourable condition of protected sites; (b) if the regulations do not reduce the level of protection provided by the Habitats Regulations, including protection for protected species, habitats or sites; and(c) following public consultation and consultation with—(i) the Office for Environmental Protection,(ii) Natural England,(iii) the Joint Nature Conservation Committee, and(iv) other relevant expert bodies.”Member’s explanatory statement
This amendment ensures that powers to amend the Habitats Regulations may only be used for the purposes of environmental improvement following consultation. It ensures that the level of environmental protection that must be maintained includes protection for important habitats, sites and species as well as overall environmental protection.

[Lord Krebs (CB)]

My Lords, the amendment is in my name together with those of the noble Baronesses, Lady Parminter, Lady Jones of Whitchurch and Lady Bennett of Manor Castle.

The amendment replaces four amendments that we debated in Committee. It has the same intent as those four amendments: to ensure that the Secretary of State cannot amend the habitats regulations without due process and constraints.

Bearing in mind the admonition we recently heard, let me recap very briefly. The habitats regulations protect our most valuable conservation sites, habitats and species. While these sites account for only a modest proportion of our land and marine area, they certainly punch well above their weight when it comes to protection of species. Unlike the targets in Clause 3, which apply to the country as a whole, the habitats regulations refer to specific places. This is an important distinction.

Clauses 108 and 109 allow the Secretary of State to amend these regulations, and they do not give enough safeguards to ensure that our most valuable habitats will be protected in future. Amendment 99 would provide those safeguards, stating explicitly that any changes to the habitat regulations would not breach any of our international obligations, would contribute to enhancing the conservation of habitat sites and species and would not reduce current levels of protection. It would also require the Government to consult the appropriate statutory expert bodies and other relevant experts. In short, it places in the Bill the commitments that the Government have already made in debate in Committee, when the Minister reassured us on every point.

So what is not to like? The Minister told us that key reasons for Clauses 108 and 109 were contributing to “international obligations” and ensuring

“our protected sites can be restored to good condition”.

This is made clear in Amendment 99. He also told us that the powers in these clauses would be used only to strengthen environmental protection. However, as it stands this would be a test of the Secretary of State being satisfied that protections are not reduced. Although the Minister described this as a “high bar”, it is a subjective judgment. Amendment 99 would replace this subjective test, whereby Ministers mark their own homework, with an objective requirement. The Minister pointed out that the Secretary of State’s judgment could be challenged in the courts, but that seems to me to be setting up a system that would generate money for lawyers and take up large amounts of time with uncertain outcomes. Why not simplify with Amendment 99?

The Minister said that the Government would consult the office for environmental protection before making any changes to the habitats regulations. Amendment 99 extends the consultation requirement to include other relevant bodies. He also referred to a review led by the noble Lord, Lord Benyon, but did not tell us who was consulted in this review and what its impact will be. Perhaps he can expand on this in his reply.

As I have already mentioned, a crucial difference between the habitats regulations and the Clause 3 commitments is that the habitats regulations protect particular sites, habitats and species, while the Clause 3 targets do not. The Minister told us that Clause 108 is

“designed to allow requirements to specify … protections for habitats and species”.—[Official Report, 12/7/2021; cols. 1620-1.]

However, this does not guarantee those protections. The Minister also told us in Committee that the habitats regulations had not worked. I am not sure to which studies he is referring, but the evidence, as I understand it, from peer-reviewed literature, is that protected species fare better in countries where protection of the kind provided by the habitats regulations is most extensive and long-standing. This is not to say that things could not be improved. However, the Minister did not give us specific examples of how the powers of Clauses 108 and 109 would lead to an improvement. In fact, we heard from the noble Baroness, Lady Neville-Rolfe, that this was a post-Brexit opportunity to cut red tape and bureaucracy—hardly a reassuring message.

In summary, I have not heard any convincing arguments against the habitats regulations being maintained, and Amendment 99 will ensure that any changes in future will strengthen rather than weaken them. I very much look forward to what the Minister has to say in his reply but, as things stand, I would wish to test the opinion of the House on this crucial amendment. I beg to move.

[Baroness Bennett of Manor Castle (GP)]

My Lords, your Lordships’ House will hear from me a great deal later on, so I will be very brief in this contribution. I have attached my name to this amendment in the name of the noble Lord, Lord Krebs, which of course has full cross-party and non-party backing. The noble Lord has set out an overwhelmingly powerful case for why we should have this amendment.

I make two comments. We were promised non-regression with Brexit, and this would restore some of the protections that we lost with Brexit and, more than non-regression, we were promised improvements. This is simply standing still, so the Government really must commit to this amendment.

--- Later in debate ---

[The Minister of State, Department for the Environment, Food and Rural Affairs and Foreign, Commonwealth and Development Office (Lord Goldsmith of Richmond Park) (Con)]

I thank noble Lords for their contributions during this debate. The Bill takes the world-leading step of requiring a new, historic and legally binding target to halt species decline by 2030. The powers in Clauses 108 and 109 form an integral part of our strategy to achieve this.

The first of those powers enables the amendment to Regulation 9 of the Conservation of Habitats and Species Regulations 2017. Currently, that regulation requires Ministers and public authorities to comply with or have regard to the requirements of the habitats and wild birds directives. However, these requirements are not explicitly set out anywhere. This has provided scope for differing interpretations and disagreement, as well as potential for legal challenge.

Instead of spending time and taxpayers’ money on battles in the courtroom, we want to try to focus on ensuring that the protection of our designated sites and species is based on robust science and technical expertise. The Government will publish a Green Paper later this year, as the noble Baroness, Lady Jones, acknowledged, which will set out clearly, plainly and transparently our view of the current requirements of Regulation 9 and remove that uncertainty. We will consult on and agree the conservation requirements necessary to meet our biodiversity targets and improve the natural environment. This will support our aim to focus on the scientific evidence as well as our national priorities for nature restoration.

The second power concerns the amendment to Part 6 of the regulations, which enables us to review the current habitats regulations assessment process. My noble friend Lord Benyon is chairing a small working group that is gathering information from experts regarding our current HRA process, to inform any future decisions on the use of these powers. The group is consulting a wide range of experts with direct experience of HRA, including the competent authorities, statutory advisers, environmental NGOs, developers, town and country planners and land managers. The group includes Minister Pow, Tony Juniper—he is chair of Natural England—and Christopher Katkowski QC. It will input options for proposals and questions to the Green Paper, which will then be subject to extensive consultation.

A clearer, quicker and more easily understood process will support environmental protection by focusing on the issues that really matter for protected sites. I am reminded that Lord Justice Sullivan, when the regulations were formulated, recommended that we needed a system that was simple and not too full of hurdles that could end up causing excessive battles in the courtrooms. It feels to me that, in part, that is where things have ended up.

However, I can commit to this House that no changes will be made without extensive consultation and strong parliamentary scrutiny. Consultation will include the office for environmental protection and statutory nature conservation bodies. It will also include key environmental NGOs, farmers and land managers to name a few. Those commitments are reinforced in Clauses 108(5) and 109(3), so that, in making regulations using these powers, Ministers must be satisfied that they do not reduce existing protections. In addition, we have added a specific requirement that Ministers justify to Parliament that any new regulations using these powers meet the test. This is a meaningful scrutiny mechanism with strong safeguards ensuring that we will not reduce the level of environmental protection.

I know some noble Lords are concerned that the changes will undermine the specific protections currently conferred by the habitats and wild birds directives, and I want to be clear that Clause 108(3) allows for requirements or objectives to be specified in relation to the 2030 species target or other long-term biodiversity targets and to improve our natural environment. These requirements and objectives can specify, among other things, how we must protect habitats and species, and at what scale, to ensure we can reverse biodiversity loss.

Additionally, many of the requirements in the directives derive in turn from multilateral environmental agreements, of which the UK is a contracting party and was instrumental in promoting—in particular, the Berne convention. We remain bound by international law and committed to those obligations to contribute to the conservation status of these habitats and species within their natural range and to continue to co-operate internationally to do so. We remain equally bound by and committed to conserving the marine environment under the Ospar convention; migratory species under the Bonn convention; wetlands under the Ramsar Convention; and, more broadly, the Convention on Biological Diversity.

I hope I have gone some way to reassure noble Lords that this power has been tightly drafted, with strong safeguards in place on its use, and that Amendment 99 is therefore not necessary. Climate change and biodiversity loss present huge long-term challenges that literally threaten our future if left unchecked. We need to act now, through this Bill, to halt the decline of species by 2030 and, as noble Lords will know, we will be legally obliged to do so when the Bill becomes an Act, as we hope it will. The habitats regulation assessment is a key mechanism for preventing deterioration of our most valuable habitats. We want to strengthen that protection and investigate ways in which the habitats regulation assessment could support better environmental outcomes. I therefore urge the noble Lord to withdraw his amendment.

[Lord Krebs (CB)]

I thank all noble Lords who have taken part in this short debate and the Minister for his response. I want to make just three points. The first is that, listening carefully to what he said, I reiterate the question that the noble Lord, Lord Deben, put to him: there is nothing that the Government are not already committed to in this amendment, so why not accept it? I have not heard the argument against it. I have heard the argument for it from the Minister.

The second point concerns the Green Paper, which loomed large in the Minister’s response. There seems to be one species that might be protected by the Green Paper: the pig—the pig in the poke. We do not know what is going to be in the Green Paper. We have had a list of names of people who might be consulted, but we do not know what form the consultation has taken.

The third point is that the Minister referred to the need to have a regulatory regime that is quicker, easier and simpler. That rings alarm bells for me. Ease, simplicity and speed are not necessarily merits that one wishes to pursue if one’s aim is to protect the natural environment. I am afraid that although I have heard responses in detail to Amendment 99, I am not convinced that they provide a satisfactory end point, and therefore wish to test the opinion of the House.

Environment Bill

Lord Krebs Excerpts

Monday 13th September 2021 Lords Chamber

Moved by

[Lord Krebs]

84A: Schedule 14, page 222, line 17, at end insert—
“(6) Within the period of six months beginning with the day on which this Act is passed, the Secretary of State must produce or revise the biodiversity metric, having particular regard to the ecological importance of—(a) diversity of habitat types and management approaches, including open mosaic habitat, scrubland, and habitats that mature slowly, (b) the potential of individual sites to support rare, endangered and vulnerable species, and(c) habitat connectivity across a landscape.(7) The Secretary of State must review the biodiversity metric at least annually and revise it to take into account—(a) any significant developments in scientific evidence, and(b) any assessment of progress toward meeting targets set under Part 1 of the Environment Act 2021.”Member’s explanatory statement
This amendment ensures that the Biodiversity Metric includes the ecological requirements of rare and endangered species, that it recognises the importance of habitat heterogeneity and connectedness, and that it is updated regularly in light of scientific evidence.

[Lord Krebs (CB)]

My Lords, in moving my Amendment 84A, I will also speak to support Amendments 85 and 87 in this group in the name of the noble Baroness, Lady Jones of Whitchurch, to which I have added my name along with the noble Baronesses, Lady Parminter and Lady Jones of Moulsecoomb. I thank the Minister for his time in discussion with me, and officials at Defra and Natural England for going into considerable detail in subsequent meetings.

I will be very brief, in view of the late hour. To cut to the quick, the biodiversity metric, which is what this amendment is about, is the measure by which developers and planning authorities calculate whether biodiversity off-setting produces a net-positive outcome for nature. Of course, if we think back to Clause 3, which we debated last week, this net gain concept will be crucial if the Government are to succeed in delivering their target of halting species decline by 2030.

However, as I said briefly in Committee, the metric as currently proposed by Natural England and Defra is, in the view of at least some leading academic experts, practitioners and end-users, deeply flawed for the following reasons. First, it does not adequately consider the requirements of key species. Secondly, it uses an oversimplified classification of habitat type and quality as a surrogate for species abundance. Thirdly, it does not adequately incorporate the so-called Lawton principles of bigger, better, more connected habitat, which are the accepted gold standard for protecting biodiversity.

I will illustrate these flaws with an example. A few hundred metres from my home in Oxford, there is a city council nature reserve called Burgess Field, known locally for its rich biodiversity. Many species of birds, butterflies and other insects, as well as wildflowers, thrive there. Yet, as my colleague Professor Katherine Willis of Oxford University points out, this nature reserve would count as “poor” habitat if it were assessed by the metric. This simply cannot be right.

Defra officials and Natural England acknowledge that the metric is a work in progress, but they argue that a great deal of work has gone into its development —of course, the fact that a great deal of work has gone in in the past does not mean to say that more work cannot easily be done in the future—and that it has to be kept simple to make life easier for developers. I think it should be made more difficult and life made easier for nature. My amendment simply asks the Government to reconsider the metric and to revise it yet again. My ask is a modest one—to review the deficiencies and continue to improve the metric. I very much hope that the Minister will confirm his commitment to doing this.

I will leave it to others to speak in more detail to Amendments 85 and 87, which ask the Government to extend the lifespan of net gain from 30 to 125 years, but I will make two very brief points. Having spoken to Defra officials, as I understand it—I hope I am wrong and that the Minister will correct me—there are two lines of argument for defending the 30-year, rather than a 125-year, limit. First, if the requirement for the duration of net gain were too onerous it would be an obstacle to development because no one would want to commit their land for a long time for preserving biodiversity. It is said that the experience from other countries demonstrates this, although I have not been able to find the evidence. The second argument is that if at the end of 30 years valuable habitat has been created, that habitat will be protected by other regulations, such as a designation as an SSSI. These two arguments seem self-contradictory. On the one hand it is important to tell developers that they can have their land back after 30 years, but on the other if they do a good job of creating new habitat for net gain they cannot have it back. I look forward to the Minister’s reply. I beg to move.

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[Lord Krebs (CB)]

My Lords, I thank all noble Lords who have taken part in this short debate. I also thank the Minister for his response. With regard to Amendment 84A, in brief, I accept the reassurance that he gave in his reply. The metric will be regularly reviewed in light of scientific evidence. The Government recognise the importance of species and microhabitats, and the need for connectivity across landscapes. Rare and protected species will be safeguarded by regulations that will work alongside net gain, and the Lawton principles will underpin net gain and be considered when updating the metric.

I still think that, given the concerns expressed by many stakeholders on the current version of the metric, there should be an urgent consideration before it is finally put into practice, so that we can get it as good as it can be. I also accept the point that the noble Lord, Lord Blencathra, made: that this is an ongoing work in progress and will be continually improved.

With regard to Amendments 85 and 87, I am disappointed that the Government are not prepared to go further. However, I accept the reassurances of the Minister on Amendment 84A and beg leave to withdraw it.

Amendment 84A withdrawn.

Environment Bill

Lord Krebs Excerpts

Report stage
Wednesday 8th September 2021 Lords Chamber

[The Minister of State, Department for the Environment, Food and Rural Affairs and Foreign, Commonwealth and Development Office (Lord Goldsmith of Richmond Park) (Con)]

I thank all noble Lords for their contributions to this debate. Beginning with Amendment 11, moved by the noble Baroness, Lady Brown of Cambridge, the Bill’s robust statutory cycle of monitoring, annual reporting and five-yearly reviews, combined with the OEP and parliamentary scrutiny, ensures that meeting interim targets is taken seriously, without the need for them to be legally binding. We discussed this in detail in Committee, but I would like to outline the Government’s position briefly once more.

The OEP will scrutinise the Government’s progress on targets, including those interim targets, and it can make recommendations on how to improve progress, to which the Government have a duty to respond. It would be both unnecessary and detrimental to our targets framework and our environmental ambitions to introduce legally binding interim targets, as the approach risks undermining the long-term nature of the targets framework, which we have designed to look beyond the political cycle of any one Government and to avoid action solely focused on short-term wins. As I mentioned in Committee, it is undoubtedly a natural temptation for any and every Government working to legally binding five-year targets to set eye-catching, short-term measures in their manifesto, even if those are not necessarily the most effective measures for meeting the longer-term targets.

However, everything we know about the complexity of the environmental targets—indeed, everything we know about natural systems—shows that they transcend any one Administration or five-year period. We are talking about living, non-linear systems, where there will be plenty of measures whose effects will take many years to bear out. For example, for certain habitats, such as peat bogs, native woodlands and elements of the marine environment, significant change is very unlikely to occur within a five-year period, no matter what we do now. We would not want to have to deprioritise key aspects of the environment with longer recovery times to meet a legally binding target in five years.

A number of speakers have made comparisons to the carbon—

[Lord Krebs (CB)]

I thank the Minister for allowing me to interject briefly. He makes the point that restoring and maintaining natural systems is a long-term process. I would agree with that, but does he not also accept that a key element of meeting the targets is to build resilience of natural systems—that is, their ability to withstand shocks and to recover from events such as extreme weather or infectious disease outbreaks? One can tell, from decades of ecological research, at an early stage whether the right steps are being taken to build the resilience of natural ecosystems. Therefore, that could be identified as a shorter-term target to achieve the long-term aims.

[Lord Goldsmith of Richmond Park (Con)]

I agree with the noble Lord; building resilience into our natural environment—into the natural systems on which, ultimately, we depend—is clearly a priority, and I think that is reflected throughout the Bill. It is certainly reflected in our soon to be newly introduced 2030 biodiversity target. But I do not think that takes us away from the fact that, if we are measuring progress on the basis of a longer-term plan, you would end up in some cases with a very dramatic hockey stick, which would be difficult for a Government to explain in the way that would be necessary in the context of legally binding targets.

--- Later in debate ---

[Baroness Parminter (LD)]

My Lords, I thank the noble Baroness for moving the amendment in the name of the noble Lord, Lord Bird. I support the sentiments and the important issues that it raises and thank her for her remarks and her support for my Amendment 20.

The point of Amendment 20 is to help the Government’s policy statement on the environmental principles to put environmental protection at the heart of government decision-making. Currently, the principles ask departmental Ministers to consider the least environmentally damaging option when they are looking at a range of policy options. However, not all Ministers are obliged to take that policy statement into account. The MoD and the Treasury are exempted because defence and tax and spending have a disapplication from the existing statement on environmental principles.

I thank the Minister and his colleagues for meeting me over this summer to discuss this matter, but I am disappointed that we have not made as much progress as I thought we might, and I reserve my right to test the opinion of the House on this matter. As the noble Baroness said, the Minister said in Committee that the reason for this exemption was that it could restrict our response to urgent threats. I accept entirely that the MoD will have urgent threats which it needs to respond to, and I would support the Government coming forward with a targeted disapplication to enable that to happen. However, this is not a targeted disapplication; it is a blanket disapplication for the MoD. The MoD has a third of all the UK’s SSSIs—our most special land for habitats and for environmental protection. In addition, there are all the tenanted farmers, the ancient woodlands and all the land that could deliver so much in terms of natural resource protection on the 2% of the UK land mass which is the military estate in the UK.

There are plenty of examples in pockets of the MoD where it shows that it can marry together environmental protection and the protection of the state. However, unless we change this clause as it stands, I fear that the description in the National Audit Office review in 2020 of environmental protection in the MoD as a Cinderella service will not change. Equally, since then, in March of this year, the Minister Jeremy Quin MP and others launched the MoD’s new climate change and sustainability approach. It says:

“The response to climate change and sustainability in Defence must be led from the top and applied across all areas and at all levels.”


Without this amendment, that cannot be delivered.

As regards the exemption for the Treasury and for tax and spending policy, given the importance of tax policies and departmental budgets to deliver environmental targets when we are looking at managing the land for protecting the environment, it is almost unbelievable that there is that exemption. It means that Ministers will not have to consider environmental matters when they are looking at spending issues such as roads. As the noble Baroness said, the Minister’s response was that the exemption was to allow maximum flexibility. In the Government’s response to the Dasgupta review, which was produced earlier and to which the Government have signed up, they accepted that nature was a macro- economic consideration and supported setting out steps to align national expenditure with climate and environmental goals. Without this amendment, that cannot be delivered.

It is not just me saying that; since we last met in Committee, the office for environmental protection has given its first advice—at the request of the Government—on the draft environmental principles policy statement. I will quote from the chief executive offer of the OEP, which we will come on to in the next group of amendments. Natalie Prosser said that

“there are such important benefits to be reaped should policy-making across all departments embrace and live by these principles.”

That is all departments—not some departments. It would be a very worrying sign if the Government were to refuse that first piece of advice from the OEP.

[Lord Krebs (CB)]

My Lords, it is a great pleasure to follow the noble Baroness, Lady Parminter, and I have put my name to Amendment 20. I will be very brief, because I had a real moment of joy and optimism this morning when I read the latest Defra briefing notes, called Key Facts on the Environmental Principles. I will read out two sentences from this factsheet, which lead me to believe—if these really are facts, as it says —that the Government have changed their mind. First, “Ministers across government”—I emphasise that—“will be legally obliged to consider the principles in all policy development where it impacts the environment”. Secondly, “All government departments” —I emphasise that—“must consider the environmental principles policy statement when developing policy”.

I assume that unless the key facts are not key facts, the Government have indeed accepted Amendment 20, and I very much look forward to the Minister confirming that in his response.

--- Later in debate ---

[Lord Goldsmith of Richmond Park (Con)]

I am pleased to open this group and speak to the amendments I have tabled, which respond to many of the concerns raised by noble Lords in Committee regarding the independence of the OEP. I also notify noble Lords that I outlined in a Written Ministerial Statement yesterday the full range of provisions already in place to ensure the OEP’s independence. I hope that it is a useful reference point for noble Lords and that it offers reassurance on the Government’s commitment to the independence of the OEP.

These amendments will increase parliamentary scrutiny of any guidance that the Secretary of State wishes to issue under Clause 25. They will afford Members in both Houses the opportunity to review and make recommendations regarding the draft guidance, to which the Secretary of State must respond before final guidance can be laid and have effect. This will provide additional parliamentary oversight, not only of any guidance issued by the Government but any issued by future Governments.

For parity, Northern Ireland Ministers have decided also to bring forward amendments to Schedule 3 to give the Northern Ireland Assembly the same opportunity to scrutinise any draft guidance issued relating to the OEP’s Northern Ireland enforcement functions.

As I have said before, the OEP has an unprecedented remit, with the ability to take enforcement action against all public authorities. It is for this reason that the Government feel that a guidance power is necessary to help ensure that the OEP continues to carry out its functions as intended. However, I understand the concern about the use of this power and hope that these amendments go some way to reassuring noble Lords that there will be an additional check on its use.

There is no question that the OEP must be impartial and independent but it should also be accountable to Ministers who are ultimately responsible for its use of public money. Any guidance issued must respect this important balance and I hope that this additional mechanism for parliamentary scrutiny will allay these concerns.

Finally, I thank the noble Baroness, Lady Taylor of Bolton, and the other members of the Constitution Committee for their recommendations on this matter. I beg to move.

[Lord Krebs (CB)]

My Lords, Amendment 24 in this group is in my name and those of the noble Baronesses, Lady Parminter and Lady Jones of Whitchurch, and the noble and learned Lord, Lord Mackay of Clashfern.

In Committee, there was strong support from across the House for my amendment that would have removed the guidance clause from the Bill in order to ensure that the OEP was fully independent. In fact, I do not recall anyone making a coherent case for greater ministerial control over the OEP. I acknowledge and thank the Minister and the Secretary of State for their time in discussing this matter since Committee. I also thank the Secretary of State for his letter to my noble friend Lord Anderson of Ipswich and myself, dated 28 August.

I also acknowledge that the Government have made concessions in their own amendment to Clause 25 and that, furthermore, the importance of the independence of the OEP was reiterated by Minister Pow yesterday in a Written Statement and also by the noble Lord the Minister with the same Written Statement.

So why am I still pressing ahead with my amendment to replace Clause 25? It is simply this: if we must get one thing right in this Bill, it is the office for environmental protection. The OEP is the body that will ensure that the Government’s warm words about the environment are translated into action. The Minister himself could not have been clearer on Monday. When I asked who will hold the Government to account on the target of halting species decline, he replied that it was the office for environmental protection. Even with the government amendment to Clause 25, the OEP is not, in my view, sufficiently independent of Ministers for us to be confident that it will be able to do what is has been set up to do.

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Amendment 22 agreed.

[Lord Krebs (CB)]

I am sorry; I would like to make a few comments about Amendment 24. I thought the agreement was to Amendments 22 and 23.

[The Deputy Speaker (Baroness Fookes) (Con)]

I am just putting the amendment. As far as I am aware, Amendment 22 has passed, so we now come to Amendment 23.

Amendment 23

--- Later in debate ---

Moved by

[Lord Krebs]

24: Clause 25, leave out Clause 25 and insert the following new Clause—
“OEP independence
(1) The OEP has complete discretion in the carrying out of its functions, including in—(a) preparing its enforcement policy,(b) exercising its enforcement functions, and(c) preparing and publishing its budget.(2) At the start of each period of multi-annual funding and no later than 1 April 2023, the Secretary of State must lay before Parliament, and publish, a statement setting out the multi-annual budget which they intend to provide to the OEP.(3) The Secretary of State must lay before Parliament, and publish, a statement responding to any request from the OEP for additional funding due to a change in the body’s responsibilities or functions, within three months of that request being received.(4) In making or terminating appointments under paragraph 1 and paragraph 5 of Schedule 1, the Secretary of State must obtain the consent of the Environment, Food and Rural Affairs and Environmental Audit Committees of the House of Commons.”Member’s explanatory statement
This amendment aims to ensure that the OEP is as independent as possible.

[Lord Krebs (CB)]

I apologise for my earlier interjection, out of order. I thank the Minister for his response to my amendment and Amendment 30, in the name of the noble Baroness, Lady Ritchie of Downpatrick. I also thank all noble Lords who have contributed to this short but interesting debate.

I reiterate what I said at the beginning and has been said by a number of other contributors to this debate: if we get it wrong on the office for environmental protection, the whole edifice of the Bill could fall. All the things the Bill attempts to achieve will, in the end, depend on having a strong, independent, powerful office for environmental protection. If we get it wrong, people out there who observe what Parliament is up to and care about the environment will not understand why we failed.

At the moment, the arrangement is rather like having a whistleblower who is told by the boss which areas he or she is not allowed to investigate. That is simply unacceptable. Unfortunately, we seem to be involved in a dialogue of the deaf. We keep on repeating the message, and it is strong and not from one particular party or group in the House—the view is held widely—and the Government, unfortunately, reiterate the same points over and over again. I feel the time has come to test the opinion of the House and I wish to do so.