China: Human Rights and Sanctions

Lord Rooker Excerpts

Tuesday 29th October 2024 Lords Chamber

[Baroness Chapman of Darlington (Lab)]

I am grateful to the noble Lord for his support for the China audit. I think the most helpful thing I can say at this point is that the audit will be thorough and cross-government; the whole of Whitehall and all departments will be included in that audit.

[Lord Rooker (Lab)]

I am astonished that the Foreign Secretary did not offer a Statement to the House of Commons but forced an Urgent Question, which has, of course, limited our opportunity to ask questions as well. Is it because he understands that there are some western democracies that, in the recent past, have got their people out of Chinese Communist Party prisons, yet his kowtowing visit means that he came back empty-handed as far as Jimmy Lai is concerned?

[Baroness Chapman of Darlington (Lab)]

My Lords, I must disagree with my noble friend on his assertions and the tone in which he put his question. My right honourable friend David Lammy, the Foreign Secretary, went to China because he wanted to raise these issues. Unless we engage with China, we do not get the opportunity to raise these issues. He raised the case of Jimmy Lai. He has called for Jimmy Lai to be released, as well he should. This is consistent with his position in opposition. He has gone further and made sure that every Minister in their engagement with China continues to raise on every occasion the case of Jimmy Lai. He should be released.

Protection of Media Freedom

Lord Rooker Excerpts

Thursday 8th December 2022 Lords Chamber

[Lord Goldsmith of Richmond Park (Con)]

My noble friend is absolutely right. I believe it is still the case today that on average, every five days around the world a journalist is killed for bringing information to the public. With 80 journalists and media workers killed already this year and the number of journalists jailed for their work at an all-time high, this continues to be a real priority for us. The military in Myanmar has arrested over 100 journalists and killed at least three, and many others have been subject to torture, extreme violence and so on. It has also shut down almost all independent media in the country. Of course, we wholeheartedly and completely condemn the military’s behaviour and its suppression of opposition voices, including journalists and civil society activists, since the coup last year. We are providing emergency funding to help journalists and media organisations continue to report what is happening in Myanmar, and we are working with the Media Freedom Coalition and international partners to call out the military suppression of media freedom and the targeting of journalists.

[Lord Rooker (Lab)]

I am sure that the Minister will agree that journalists’ rights and human rights begin at home, so how does the chairman of the Conservative Party issuing a SLAPP order and making use of it to shut down discussion of his own affairs help matters? Will the Government support the amendment to the Public Order Bill from the noble Baroness, Lady Boycott, which we will come to next week, to protect such journalism?

[Lord Goldsmith of Richmond Park (Con)]

My Lords, SLAPPs are clearly an abuse of the legal system, involving the use of legal threats and litigation to silence journalists, campaigners and public bodies who investigate wrongdoing in the public interest. The Government launched a call for evidence on SLAPPs earlier this year, and their response to it was published in July, setting out proposed reforms to tackle SLAPPs. These include primary legislative reforms to introduce a statutory definition of a SLAPP, create an early dismissal process for SLAPPs, and introduce a cost-protection scheme via secondary legislation.

Russia (Sanctions) (EU Exit) (Amendment) (No. 9) Regulations 2022

Lord Rooker Excerpts

Monday 23rd May 2022 Grand Committee

[Lord Purvis of Tweed (LD)]

My Lords, the Liberal Democrats support this instrument, having consistently maintained views the Minister has indicated. This is the ninth sets of such regulations that we have scrutinised and supported. The Minister is absolutely right that, as this illegal aggression continues, depressingly, we continue to see horrors inflicted on the people of Ukraine. Therefore, the Government’s response, supported by the Opposition—to use every mechanism to seek to impact on the decision-making of the Putin regime—is to be supported.

There are early signs that the collective imposition of the sanctions from the United Kingdom and our allies is impacting on the Russian economy. We are mindful that many people in Russia are in receipt of the lies and misinformation of the Putin regime, in addition to those around the world, and they are likely to be victims of this. That is why, as President Zelensky has indicated, it adds to the pressure on the Putin regime to come to a diplomatic solution and to cease the violence.

I want to probe just a couple of areas, and then ask the Minister a couple of questions on aspects related to these sanctions, rather than the sanctions themselves. First, we have been aware of the European Union sanctions on social media on 2 March, and then the reciprocal decisions by Russia on Instagram determining Meta as an extremist organisation on 11 March and blocking Euronews on 21 March. On 14 April, it registered as foreign agents under its laws 79 NGOs and 131 media outlets. The Putin regime is not only waging war on the people of Ukraine, but it is waging war on free media around the world. It is right, therefore, that the European Union, the United States, Canada and the UK, as the Minister said, work in lock-step.

Will the Minister demonstrate how robust these measures will be, given that there has been a gap between the EU operating its sanctions and the measures before us, and that there is some indication that RT and Sputnik have been successful in working around some of the EU regulations? The Minister has highlighted the designated persons measure, which I support, but we have already seen in respect of the equivalent for those indicated by the European Union the use of proxy sites and other social media platforms to disseminate information. The use of visual content bearing RT logos but not originating from RT, uploaded by users, has been co-ordinated and has an absolute purpose to work around the sanctions. How robust does the Minister consider these measures will be, in the light of what we have seen of RT-hosted material on other platforms around the world? How easy is it for those to be used in the United Kingdom?

Will the Minister confirm that these measures will cover virtual private networks? Use of VPNs and RT content through other countries has increased by 50%. If someone is seeking to access RT, Sputnik or other material from designated persons via a VPN, is that an offence under UK law?

My second question regards the extraterritorial jurisdiction nature. It is right that the designated persons are overseas entities, but can the designated persons be operating across all groups seeking to use the disinformation tactics of the Putin regime? I mention specifically Wagner Group, one of the arms of which has been sanctioned by the UK as named individuals. That is correct, and the Minister knows I am on record as wanting the Government to go beyond that and have it proscribed as a terrorist organisation. It is active, as are other mercenary groups, as the disseminator of disinformation and misinformation.

Can mercenary groups be designated persons under these matters? I know that the Minister will say that they keep the list of designated persons under review, but I should like him to go beyond that and say that there are no limits under the terms of the legislation on who designated persons could be. It would be regrettable if there were those seeking actively, with resource from the Putin regime working in many countries, to work around sanctions such as these, but they were not included. Can Ofcom police them if they are designated persons who are groups outside the UK? What legislative powers does Ofcom have to work with international partners on policing?

Finally, I ask the Prime Minister—the Minister, although I see I had a Freudian slip into a dream world I have, even if the Conservatives are in power, that someone might be doing a better job than the Prime Minister. Now that I have emphasised that point, Hansard will not be able to correct me.

The Prime Minister’s spokesman is now on record as indicating why we are not in lock-step with one of our allies, Canada, on the sanctioning of Alexander Lebedev. As the Minister will well know, the Canadians have been working extremely closely with the UK and others and the Minister said that we are working in lock-step, but when it comes to the judgment of the Canadians that Alexander Lebedev should be sanctioned, the Prime Minister’s spokesman said,

“it’s not for me to comment on the judgment of a different country”.

What do we believe the Canadian judgment to be and why do we not share it? Alexander Lebedev has been singled out by the Canadians as worthy of being sanctioned. What mechanisms do we have in the United Kingdom to ensure that this individual, sanctioned by one of our closest allies, or any of his family members will not be able to use the United Kingdom to circumvent Canadian sanctions? With those questions, I support the regulations overall.

[Lord Rooker (Lab)]

My Lords, briefly, I support what was just asked about Canada. Canada is not just some other country; it is part of Five Eyes. If Putin sees Five Eyes as split, it is just as bad as the EU being split—even worse, in some ways. There has to be a better argument than Ministers have so far given as to why we have not joined Canada.

It is a long time ago since I spoke on the first sanctions. I praise the Government, because what they have done on sanctions overall has been very good. I have sometimes been surprised about the extent to which they have gone and I want to give praise where praise is due. We can always do more, but it has been a good job so far.

I note that this has been raised before, but I cannot remember the answer. The regulations talk about the UK. Where is the Isle of Man in this? People are using the Isle of Man to get around all kinds of financial things—we have had this with Brexit. For that matter, there are the Channel Islands, but the Isle of Man is in a different geographical situation. Can the Isle of Man be used to subvert sanctions such as these?

My final point is a question that I suspect the Minister cannot answer. I assume Ofcom is being fully supported by GCHQ. To have such a facility as that and not be able to use it would be a complete and utter waste. He does not have to confirm it or not, but I assume it goes without saying that Ofcom has the ability to call on GCHQ for issues relating to the edge of the sanctions.

State Pension Underpayments and Arrears for Women

Lord Rooker Excerpts

Monday 21st February 2022 Lords Chamber

[Baroness Stedman-Scott (Con)]

I am very happy to take the point back to the Treasury, although I would not hold my breath—I will probably get told off for saying that. But again, I will take the point back to the department. My noble friend has made the point very clearly, as has the noble Baroness.

[Lord Rooker (Lab)]

Let us get some gender into this. The noble Baroness talks about “people” and “persons”, but we are talking about women. When was the last time tens of thousands of men were short-changed with their pension? I do not recall that happening. When the Government took their long-term holiday from paying into the National Insurance Fund, they deprived hundreds of thousands of women of the pension that they were entitled to. Why cannot that be redressed?

[Baroness Stedman-Scott (Con)]

My Lords, I have no idea about underpayments to men. In terms of underpayment to women, we are doing an exercise; we are going through the whole system to work out who should have had the money and we will get it to them as quickly as possible.

Social Security (Up-rating of Benefits) Bill

Lord Rooker Excerpts

Consideration of Commons amendments
Tuesday 16th November 2021 Lords Chamber

[Lord Desai (Non-Afl)]

My Lords, we have been hearing lately that the House of Lords is a rather useless body and that the other place is better—but twice recently your Lordships’ House has asserted that it cares more for the people than the other place. The noble Duke, the Duke of Wellington, stood up for the right of the citizen to clean water, asserting that against what the Commons had said. We also stood up for the triple lock and had that rejected.

I have a very simple suggestion for the Government. Since they have no intention of helping pensioners, why can they not be honest and say that the triple lock simply means that we will raise pensions by the lowest number of the three which are here, unless it is higher than the Bank of England target of 2% inflation? The 2% inflation that the Bank of England has chosen as its target is not a statistic. It is not disputable because they have made it up. It will always stay at 2%. So the Government could at least guarantee to be honest; they could just give 2% and run away. They should not give false promises and then not fulfil them.

[Lord Rooker (Lab)]

My Lords, I will briefly follow the introduction made by the noble Lord, Lord Desai. I will not address the issue—I did that the last time we sat—but there is a wonderful clarity about this issue. With ignorant journalists in the media calling for the abolition of your Lordships’ House, this issue shows, above all, that we will always be an irritant to the Government, whatever party is in power. It was the same when I was over there; the House is an irritant. The clarity with this issue, particularly for those of us who do the Peers in Schools programme, it that it is a wonderful example that is very easy to explain of the fact that the Commons always has the last word.

So, whatever the arguments about the composition and powers of this place—and the idea that we can legislate at will, which we cannot—this example gives wonderful clarity on the fact that the Commons always has the last word. Our job is to ask MPs to think again and again, and sometimes again—I have known examples of three occasions. But the fact of the matter, which the elected Chamber cannot run away from, however it is dressed up, is that the Commons has the last word—and I think that is to your Lordships’ advantage for the way we operate.

[Baroness Sherlock (Lab)]

My Lords, I thank the Minister for introducing her Motion and all noble Lords who have spoken. I am going to get a new T-shirt for Christmas: “Proud to Be an Irritant”. Perhaps they should start selling them in the House of Lords gift shop; they might sell quite well. A nice note for the noble Lord, Lord Desai.

I must say that I am disappointed. The House voted by a healthy majority for the amendment in the name of the noble Baroness, Lady Altmann, which would have kept the link between pensions and earnings. It is worth noting that the amendment won support from around the House, whereas the Government were able to persuade only 13 Members who do not take the government Whip to vote against. The reason is clear: the case was unpersuasive.

The Government came to power on the back of a manifesto commitment to the triple lock, which we also supported at the last election, as did the Liberal Democrats and other major parties. The Government now want to ditch it for next year on the grounds that the rise in earnings over the year to last summer was artificially high as a result of Covid. We accept that earnings growth was distorted as a result of the pandemic, but that does not mean that the Government should just ditch their promises. They could and should have found a way to maintain the earnings link in pensions while adjusting for the Covid effect.

I will not relitigate this but, during the passage of the Bill, we looked at lots of ways we could do it, and lots of constructive suggestions emerged, and in the end the House coalesced around a very reasonable amendment in the name of the noble Baroness, Lady Altmann, with cross-party support, which simply said that the Government should use a figure for earnings chosen

“in the light of reasonable adjustments to take account of the impact of the COVID-19 pandemic based on the Office for National Statistics reported earnings figure.”

It could not have been more reasonable, and it left the Government considerable latitude: we were not telling the other place what to do but simply giving them a chance to think again.

But the Government flat out rejected that. The Pensions Minister in the other place did comment on the merits of the amendment, but he caricatured it by saying that it

“invites the Secretary of State to measure earnings as if they were not actually growing by 8.3%.”—[Official Report, Commons, 15/11/21; col. 359.]

So are the Government now saying that earnings growth actually is 8.3%? If so, why are they ditching the triple lock? And if it is not 8.3%, why did they not take the chance this House afforded them to look at alternatives?

The Minister again mentioned time pressure, so I put to her again a question I put at an earlier stage in the Bill. She told noble Lords there were two reasons why it was so time-critical. The first was that the computers have to be changed by a date—I think it was 26 November, or another date late this month that was the last date that computers could be changed to adjust the rates for next year. She also said that the House will then have to approve the uprating order, which we normally do in the spring. So what happens if they change the computers deep in the bowels of DWP and then the House chooses to reject the uprating order? What happens then?

While we are here, by refusing to look again, we are left with a Bill which will uprate pensions by the CPI inflation rate prevailing last September. Meanwhile, we all know that the costs of things that all pensioners use—food and fuel, for example—are spiralling up. Pensioner poverty is on the rise again. The last Labour Government managed to bring it way down, but it started to rise again in 2012. It is now on the rise and it will get worse yet.

I am sorry to say that this short Bill is a mistake. It steps away from the earnings link and, in walking away from their manifesto commitment for the third time, the Government are breaking trust with the electorate. Why are they so determined to do it? Ministers tell us that it is for one year only. Great, but I worry that their refusal to be creative in finding a way to deal with the fallout from the pandemic raises fears that they really are planning to walk away from this longer term.

My noble friend Lord Rooker is, as always, right. We have done what we can. We have asked the elected House to think again. The Government whipped their people to say that they did not want to do so. I think they are wrong. Pensioners will pay the price for this and they will not likely forget this breach of trust. I hope the Government think it was worth it.

Social Security (Up-rating of Benefits) Bill

Lord Rooker Excerpts

Report stage
Tuesday 2nd November 2021 Lords Chamber

[Baroness Sherlock (Lab)]

My Lords, I will speak to the other amendment in this group: Amendment 5, in my name and that of the noble Baronesses, Lady Janke, Lady Altmann and Lady Boycott. But first, I want to comment on Amendments 1 and 7 and thank the noble Baroness, Lady Altmann, for her introduction and explanation of them.

Noble Lords will remember that in Committee, the noble Baroness, Lady Altmann, tabled an amendment which simply excluded pension credit entirely from the effects of the Bill. The Minister opposed this on lots of grounds, but probably the main one was that the earnings growth had been distorted as a result of the pandemic, and therefore it would not be an appropriate way to increase pension credit. The noble Baroness has come back with Amendments 1 and 7, which would require the Government to uprate pension credit with reference to earnings but adjusted for the effects of the pandemic.

As the noble Baroness mentioned, I am quite sure the Minister will get up and say that the Government do not believe a figure can be found which will be robust enough to use as a measure of underlying earnings growth. We will come back to the substantial discussion on that point in the third group, but, in short, Labour accepts that there is a distortion in the earnings data, but we think the Government should go back and try harder to find an alternative way to deal with this without ditching the earnings link and the manifesto commitment to the triple lock—and, indeed, losing the trust of the nation while they do so. Our view is that that should be done for the state pension, which we will come back to in the third group.

In the meantime, we need the Government to face into the growing problem of pensioner poverty and to develop a longer-term strategy for tackling it. Amendment 5 would force the Government to start by assessing the impact of the Bill on pensioner poverty within six months of the Bill passing, followed by a Statement to both Houses of Parliament.

We know we have a problem. I will not go over again all the evidence from around the House that we rehearsed in Committee, but let me give a quick summary. Pensioner poverty was doing really well: it fell markedly between 1997, when it was 29% for the UK, and 2010, when 14% of pensioners in Great Britain were living in poverty. That was due primarily to the introduction of pension credit. From 2012, pensioner poverty started to rise again. Last year, 18% of our pensioners were living in poverty—that is more than 2 million pensioners now in poverty, with over a million in severe poverty.

There is a real gender pensions gap. The number of women pensioners living in poverty has increased dramatically at a time when the total number of women pensioners has fallen as a result of the state pension age going up. That is really significant. We also have a particular problem in some regions, especially London, and there is a worry about a growing problem in the north. Older people from black and Asian communities are around twice as likely to be living in poverty as white pensioners.

The context for the Bill is a cost of living crisis, with inflation rising and energy bills skyrocketing. I raised this in Committee, and the Minister responded to my concerns by saying that energy prices were built into CPI. But the prices reference point for uprating is the September CPI rate, and the energy cap was raised on 1 October. It has been raised by £139 for those paying by direct debit and a huge £153 for those on prepayment plans. Yet again, there is huge premium on being poor: the poor pay far more per person for energy than the rich.

Given the worries about pensioner poverty from around the House, and the fact that the state pension is the largest single source of income for most pensioners, it would seem obvious that Ministers should carry out an impact assessment so that they would know what effect suspending the triple lock would have on pensioner poverty. But, astonishingly, there has been no impact assessment for the Bill. When I moved a similar amendment in Committee, the Minister said it was not possible to do what we asked because it would involve modelling. She said:

“Assumptions would need to be made about how each individual pensioner’s income would change in future under each scenario.”—[Official Report, 26/10/21; col. 750.]


I accept that assumptions would have to be made—that is what happens when you model things. Is it really impossible to model the impact of this policy? If so, how does anyone model the impact of any policy on poverty? When I was a spad in the Treasury—which I accept was back when dinosaurs roamed the land—it had a TAXBEN model which it used to assess the impact of any changes in taxes and benefits. Also, in those days, the DWP had some of the best statisticians anywhere in Whitehall. I have no reason to believe that that is not the case now, although I know the department has shrunk. So, I recognise that assumptions would need to be made, but in modelling they just have to be reasonable and stated. I would even be happy with an assessment which ignored behavioural responses, if that would make it easier.

There is a common theme across all the amendments today and there are concerns from all Benches about low pensioner incomes. Our simple amendment reflects that concern. If the Minister is not convinced by all the evidence mentioned here and in Committee, I urge her simply to accept my amendment and do the work to establish the facts. If the Government want to break their manifesto commitment, at least they should be committed to gathering and publishing information about the impact of that decision. I look forward to the Minister’s reply.

[Lord Rooker (Lab)]

My Lords, I had not intended to speak. I can see why there is a logic against the noble Baroness’s amendment in some ways, although if she puts the amendment to a vote, I will support her. There was a time—I am going back some years now—when the Government were committed to a link. The consequence of that was that I had to put forward a 75p pension increase. I remember saying to Alistair Darling, my boss, “Couldn’t we make a quid? It’ll be a lot easier to explain a quid than 75p.”. He said, “No, no. The formula’s there. The Treasury said this is what we do: we stick to the formula.” So we stuck to the formula. I was always able to defend it in a way because the supplementary pension, although people did not always apply for it, was worth three quid rather than 75p, but we know about the uptake. The Treasury factor in that people do not take up benefits.

However, here it looks as though pensioners are being treated unfairly. I do not think they are because, as I shall say tomorrow in the debate on the Budget, there are so many hidden tax increases, particularly for pensioners with a very small occupational pension who are at the moment outside the tax net but who will be sucked into it because of the freezing of the personal allowance over a five-year period. Substantial numbers will be paying tax without anybody announcing a tax increase, and that is unfair. I hope that some time, when he flies in, the noble Lord, Lord Lawson, will come to support me on the basis that he supported me and Audrey Wise in 1977 to make the system workable.

However, the noble Baroness has a point. I do not intend to speak on the other amendments because there is a point where logic says you cannot take account of the pandemic. I understand the long run. For a couple of years, I did the job that the Minister is doing and I understand that Ministers are presented with a 30-year run of the consequences of any change in the figures. That has got to be the case when you are talking about pensions.

If we had the second or third-best pension in Europe, we would not be having this argument, would we? However we have one of the poorest basic pension rates of any modern economic country, but we are, so called, one of the richest. Sometimes we have to say, “Hang on a minute: let’s take a stand,” and I think today is an opportunity to do that. I know the logic is against this, but when one looks at the figures, it is an opportunity to make a change. The Government could be forced to have a look at some of the long-run consequences of having such poor pensions, where they factor in low uptake of pension credit. One of the documents produced for the Budget on changes in household incomes mentions that they factor in that people will not claim benefits to which they are entitled. That is not very fair. Today is an opportunity for the little people to hit back.

[Baroness Wheatcroft (CB)]

My Lords, I have put my name to Amendments 1 and 7 in this group, as well as to Amendments 3 and 4 which will be debated later. I am delighted to follow the noble Lord, Lord Rooker. He spoke sanely about what these amendments would do and why they should do it.

The noble Baroness, Lady Altmann, made the case very clearly. There are 2 million pensioners living in poverty and 1 million in extreme poverty. Noble Lords need to know that this Bill would put more people in this position. We should not be passing it unamended.

I find the arguments against our amendments pitifully thin—I am sorry, but I do. I remind the House that, in Committee, the Minister, who wants to do the right thing, said:

“The Government’s triple lock manifesto commitment remains in place”.—[Official Report, 26/10/21; col. 738.]


I know that that is a reference to the fact that we are told that the suspension will be for only one year, but that is not good enough. If you suspend the earnings lock for one year, the cumulative effect goes on, so the commitment is lost.

The commitment was to keep the earnings lock in place because earnings might well be greater than inflation—particularly CPI inflation—and there is no doubt that that will be the case. After all, the Government keep telling us that they want a high-wage economy. But they do not seem to want higher increases for pensioners. We know that, in most cases, these people’s spending is very curtailed. It goes predominantly on fuel and on food. Those are constituents of the CPI, but they are not in the same proportion as they are in pensioners’ spending. Therefore, increases in fuel and food prices hit pensioners harder.

I am still bemused as to how, in Committee, the Minister was able to tell us that,

“we are not currently expecting widespread, significant and sustained increases in consumer food prices in the coming months”.—[Official Report, 26/10/21; col. 740.]

I do not know what she knows, but the supermarkets certainly are. These price rises are already coming through. They are not yet fully reflected in the CPI, but we know that prices in the shops are going up. And the more that wages go up in this new, high-wage economy where we are encouraging drivers of HGVs to demand more money—which the Government say they deserve—the more this will feed through into increased food prices.

We need to make sure that our pensioners can eat. I do not want to be responsible for pensioners going hungry —or even hungrier than they have been in the past—and I do not believe that the Minister does either. It is imperative that we do what should not be beyond the wit of any Government and come up with a number that approximates effectively to where underlying earnings have gone in the last year. I have every confidence that the ONS can do this. Indeed, CPI is not quite as robust as the Minister would have us believe; it is often adjusted after a few months, or even a year, because a lot of numbers have to be adjusted as new information comes through. We could come up with an adjusted earnings figure which would enable the Government to maintain their manifesto commitment, which I am sure it would really like to do. It would enable the rest of us to ensure that pensioners –those on pension credit, as well those on the basic pension—lead a slightly better life. This is all part of the levelling-up agenda.

Environment Bill

Lord Rooker Excerpts

Committee stage
Wednesday 30th June 2021 Lords Chamber

[Baroness Jones of Moulsecoomb (GP)]

My Lords, the noble Baroness, Lady Parminter, explained her Amendment 103 extremely well. I will speak to my Amendment 109. We have Euro 2020, Wimbledon, the cricket and the Environment Bill—how much better could it be for all of us? There is so much pleasure in such a short time.

My Amendment 109 would introduce a new clause into the Bill that is intended to address some extensive governance gaps in environmental law that have arisen because of the UK’s departure from the EU. Amendment 109 places an obligation on the Secretary of State to report to the office for environmental protection “any information” that was previously required to be reported to the European Commission relating to environmental law and its application. This could include, for example, requirements to report on ambient air quality and pollutant emissions or on the implementation of key fisheries rules, both of which were previously required to be reported to the European Commission but are now no longer required under UK law. These are two helpful examples but reporting requirements were removed through EU exit statutory instruments across the whole spectrum of environmental policy areas. Without such a replacement, there will inevitably be a reduction in transparency and accountability, both of which are crucial to the effective implementation of environmental legislation.

To ensure that the amendment does not place an unnecessary burden on either the Secretary of State or the office for environmental protection, the latter must review these reporting requirements

“no later than two years”

after the Environment Bill has passed into law. If the OEP determines that an existing

“reporting requirement is no longer necessary to contribute to environmental protection or the improvement of the natural environment, it must arrange for a report setting out its reasons to be ... laid before Parliament, and ... published.”

The Secretary of State is then obliged to

“lay before Parliament, and publish, a copy of the response”

to the report within three months.

Why is this amendment necessary? The reporting of information relating to environmental law is absolutely vital to ensure transparency and accountability in environmental policy-making and ensure that government and stakeholders can identify and address environmental impacts. Continuity over time in the information being recorded and reported can also help to reveal trends and increase transparency.

However, several requirements for the Secretary of State to report information to the European Commission in relation to environmental law have been lost because of the UK’s departure from the EU and the subsequent adoption of new statutory instruments. This poses a serious threat to the effective application of environmental law in the UK—because we all know that there are quite a lot of people who try to evade these particular laws—and the Government’s ability to achieve their stated aim and manifesto promise of leaving the environment in a better state than that in which it was found.

[Lord Rooker (Lab) [V]]

My Lords, I will be brief. I put my name down to speak on this group expressly to support Amendment 103—because, given our earlier debates on the office for environmental protection and its independence, I want to test the extreme limits of Defra’s control, if there are any. I would have thought that it is a given that Amendment 103 should be accepted. If it is not, that tells us something about Defra’s controlling nature regarding the work of the office for environmental protection. That is the only point that I want to make.

A subsidiary point is that I also support Amendment 114, and, later today, I will also speak to Amendment 114A, which is effectively a fallback position for the amendment in this group.

[Baroness Bennett of Manor Castle (GP)]

My Lords, Amendment 114 operates in close relationship to Amendment 78, which we debated on Monday, to which I had attached my name. Both amendments address the relationship between the Armed Forces and the Treasury in the Bill and certain exemptions provided to them.

Amendment 78 and our debate on it talked about exemptions for action; Amendment 114 talks about removing exemptions for disclosure of or access to information. The arguments for the Government to hold their current position and not include this amendment are even weaker when we talk about information—because we are not talking about actual action.

However, it is worth going back to what the Minister said in the debate on Monday, which can help to inform this amendment. He said that including Amendment 78

“could restrict our response to urgent threats. Policy decisions concerning defence are often made rapidly, or even in real time”—[Official Report, 28/6/21; col. 579.]

due to “urgent … operational imperatives”. In that debate, we talked about a couple of interesting case studies: a new housing estate and, as the noble Lord, Lord Berkeley, mentioned, a pile being driven into a creek because it might assist in the mooring of submarines. Neither of these in any way fits the definition of urgent defence imperative.

However, I acknowledge that there are occasions on which there may be a need to, perhaps, put in some very urgent flood defences or build a pandemic hospital—the kinds of security threats that we are now facing on a regular basis—so it may be necessary to act urgently. However, I come back to that debate on Amendment 78, in which the noble Lord, Lord Krebs, cited some detailed legal material, saying that the precautionary principle, which those who are seeking to amend the Bill desire, “already includes proportionality”. Of course, if something is needed for an urgent matter of national defence, clearly it would be proportionate to act as necessary. It would not be unreasonable to then provide information about what damage had been done in terms of defence. I cannot think what one might conceivably claim regarding why information should not be provided about the damage that the Treasury might have had to do to the environment for whatever reason, if one can possibly imagine such a thing.

We are talking a lot today about openness and informing the public about what is being done to the environment. In that context, Amendment 114—I still stand by Amendment 78 in some combination when we get to Report—is essential.

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[Lord Rooker (Lab) [V]]

My Lords, I support Amendments 105, 106, 107 and 108 in this group. Indeed, I raised the issue of Clauses 37(7) and 37(8) at Second Reading and made it clear that I, as a non-lawyer, was relying on the Bingham Centre’s rule of law analysis of this part of the Bill. I am going to leave the experts—we have already heard from the noble Lord, Lord Anderson—to deal with the legal flaws. I just want to give a couple of examples that Second Reading did not allow because of the time limits.

The first is the culling of sea-birds in the Ribble estuary. The case of RSPB v Secretary of State in 2015 concerned the decision by the Secretary of State to grant permission for a cull of sea-birds. The Court of Appeal ruled that the direction to cull was not consistent with the objectives of managing their population. Under this Bill, the statement of non-compliance would declare such a cull not in compliance with environmental law but it would not stop the cull. What would be the use of such a declaration? A paper remedy is no remedy at all.

A second, more recent example, concerns Manston Airport. Permission to use Manston Airport was given by way of a particular kind of statutory instrument: a development consent order, or DCO. The DCO was contested and the Secretary of State conceded that it had been made unlawfully. The planning court quashed the DCO, meaning that it had no legal effect. Under Clause 37(7), notwithstanding it was unlawful, the DCO would remain valid.

The third example, which I will not go into in detail, concerns the case of Dover District Council v CPRE Kent. This regarded a proposed development in an area of outstanding natural beauty. The Supreme Court quashed the permission. Under Clause 37(7), there would be nothing to prevent it going ahead.

Clause 37(8) also presents problems with the rule of law, as the noble Lord, Lord Anderson, said. A local authority could give a developer the right to clear woodland to build houses. In so doing, the local authority could be breaching environmental law. The developer will have spent money on paperwork and planning. It may become non-compliant at an environmental review but, because the developer has spent money and expects to profit from the development, the development must go ahead. This is absolutely crazy. According to the Bingham Centre, this introduces

“a new ‘polluter doesn’t pay’ principle into environmental law.”

This is a new normal: unlawful actions by a public authority remain valid; it restricts the awards of a remedy by the court; it requires a court to endorse unlawful action if quashing that action would hurt a person who stands to benefit from it. The Minister must have some really good, detailed answers to these points and the others he is going to hear this afternoon—far more satisfactory than what he has managed to conjure up so far on the Bill. He must appreciate that there will be chaos on Report as the Bill gets torn apart.

[Lord Thomas of Cwmgiedd (CB)]

It is a pleasure to follow the noble Lord, Lord Rooker, and speak to the same amendments.

If the Bill is to be effective and to work, there are two main areas that need change. The first is clarity in relation to all the duties imposed because without clear duties, interlocking targets, interim targets and environmental plans, there is no effective concrete law that can be applied.

The second area where it has changed is enforcement. On Monday we had a useful debate on the independence of the OEP. Today, we turn to a second aspect of enforcement: the remedies that must be available if court proceedings are required. I very much hope that the independent strength and force of the OEP, together with clear duties set out in the Bill, will mean that recourse to courts is rarely necessary. However, that may be a pious hope because it is obvious that in this area there are immense conflicts of interest between those looking at the long term and those who seek to protect short-term or other interests. It seems to me, therefore, that an amount of litigation and enforcement action taken through the courts is inevitable.

I believe that view must be shared by the Government because why, otherwise, would they seek to constrain two important aspects of our common-law tradition? The first is to curtail the judicial function and the second is to curtail the discretion of the enforcer. I will deal with each aspect in turn but, unless changes are made to this part of the Bill, I entirely agree with everyone who has spoken about teeth. I will not attempt to describe the kind of teeth required, only to say that they must ensure that the Bill is not a long series of statements but will actually work for future generations.

I will now deal with each amendment in turn. I will deal with them briefly and in the order in which they are set out, not as the noble Lord, Lord Anderson, did, but I entirely agree with him that the critical amendment is Amendment 107. Amendment 105 changes the provision in the Bill that seeks to stop proceedings at a particular point in time being brought together. I find this very difficult to fathom. It is a very inefficient way of dealing with things, apart from being unjust. A court always likes to have all the relevant cases in front of it so that it can do justice. I ask the Minister: why do the Government wish to impede justice in this respect?

Amendments 106 and 107 can be taken together because they deal with the consequences of a decision by the court that what has happened has not been lawful. It seems to me very difficult to understand how a Government who believe in the rule of law—and I believe this Government firmly believe in the rule of law—wish to say that there are to be no consequences of a failure to comply with the law. That is very difficult to understand. However, much more serious, as the noble Lord, Lord Anderson, and others have pointed out, is the restriction on remedies. I have no doubt that the Department for Environment, Food and Rural Affairs and its very able lawyers are well aware that, from time to time, in several cases, judges have to deal with circumstances where the rights of other people are affected or there is a question about good administration. A judge then takes, for example, the prejudice to the rights of certain people on the one hand and balances it against the considerations on the other. That is an ordinary judicial function.

The Bill seeks to take that function away from a judge by imposing a restriction that requires a judge to be satisfied that if one single person would suffer hardship or prejudice to his rights, that means the court cannot do justice. I ask why. To my mind, it is a very undesirable attack on the way in which traditionally in this country we have approached matters of judicial review of government action. Until now, the judges have been trusted. It is a remarkable fact that, although there are complaints from time to time that far too many decisions are overturned on judicial review, the general effect of judicial review and the knowledge of the consequences of the remedies has been to improve good administration. The Government are successful in the overwhelming number—a percentage in the high 90s—of cases. I therefore wonder: what is driving the Government in this case to curtail the doing of justice by judges? It seems to me that there is no reason whatever for it. Surely, they can trust the judges on this aspect.

The last of these amendments is to the provision that seeks to curtail the right of the OEP to bring judicial review. Why take away its discretion? Do the Government not trust it? Surely, with an agency that is independent and to be chaired by a person of the calibre of the chairman designate, it is very difficult to understand why a Government wish to restrict its discretion for the future in bringing cases. They must also appreciate that if a judicial review has brought late, the judge can refuse a remedy. There is the lock of the discretion of the trusted OEP, with judicial discretion as a backstop. Why do the Government need more? We should trust our common-law traditions and leave matters to the discretion of the judiciary and to the discretion of the enforcer.

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Moved by

[Lord Rooker]

108A: Clause 42, page 25, line 23, leave out “26(1) or”
Member’s explanatory statement
The amendment would exclude from the prohibition on disclosure in Clause 42(1)(a) information obtained by the Office for Environmental Protection under Clause 26(1).

[Lord Rooker (Lab) [V]]

In moving Amendment 108A, I will speak also to the other amendments in this group, all originally tabled in the name of my noble friend Lord Wills, who regrets that he is unable to be with us today. The first four refer to Clause 42, and the final one to Clause 45.

My main concern is the effect of Clause 42 on the right of access to environmental information under the Environmental Information Regulations 2004—the EIR. Clause 42(1) prohibits the disclosure of several classes of information by the office for environmental protection. These are: information provided to the OEP to assist it with its functions by a body with public functions under Clause 26(1); and specified information about OEP enforcement action, including any information notice or decision notice it serves, any related correspondence with an authority, and information provided to it by the authority.

Clause 42(2) describes the circumstances in which disclosure to the public will be permitted. These are: if the body supplying the information, the OEP or authority, consents—but this does not apply to an information notice or a decision notice—or if the OEP has concluded that it intends to take no further steps in relation to the matter. That is set out in subsection (2)(h).

Clause 42(3) prohibits disclosure of certain information by public authorities, particularly those which are the subject of OEP enforcement action. Clause 42(4) provides exceptions to the prohibition. None of the exceptions to the prohibitions under Clause 42 permits disclosure for the purpose of complying with the EIR or the Freedom of Information Act.

However, the Explanatory Notes set out an entirely different view. Paragraph 365 says that Clause 42

“does not override the EIR which will still apply to the OEP and other public bodies. The OEP will be required to consider requests for disclosure of information made under the EIR on a case by case basis, including assessing whether any appropriate exception will apply.”

Paragraph 366 adds:

“This clause will also not override or disapply other existing legislative provision on public access to information such as the Freedom of Information Act 2000”.


This second statement is plainly wrong. Section 44(1)(a) of the Freedom of Information Act exempts from access any information whose disclosure

“is prohibited by or under any enactment”.

This is an absolute exemption to which the Freedom of Information Act’s public interest test does not apply. Any statutory prohibition which applies to the information overrides the FoI right of access.

The position under the EIR is more complicated. Regulation 5(6) of the EIR states:

“Any enactment or rule of law that would prevent the disclosure of information in accordance with these Regulations shall not apply.”


Prior to Brexit, that would have guaranteed that a statutory prohibition could not undermine the EIR right of access, as the regulations implement an EU directive. The supremacy of EU law meant that it could not be set aside by domestic law. That principle no longer applies.

The EIR are now retained EU law. As I understand the position, from various briefings and from our own discussions, it is that, following the implementation period—IP—completion day:

“The principle of the supremacy of EU law does not apply to any enactment or rule of law passed or made on or after exit day.”


That is in Section 5(1) of the European Union (Withdrawal) Act 2018.

“So domestic law passed after IP completion day will trump provisions in retained EU law that are of EU origin and which would have benefited from the principle of supremacy before IP completion day”—


that is the legal opinion given out by firms such as Gowling WLG.

The Bill’s prohibitions on disclosure postdate the implementation period and are clearly incompatible with the EIR rights of access. So long as the prohibitions apply, they appear to override the EIR right of access to the information concerned. Let us take an example. The OEP will be prohibited from disclosing any information supplied to it by a body with public functions under Clause 26(1). This requires such a body to provide information to the OEP if it asks for it in connection with its functions. Substantial classes of information could be affected, given the OEP’s broad functions. These, of course, include monitoring progress towards improving the environment, meeting environmental targets and implementing environmental legislation, as well as advising Ministers and investigating failures by public authorities to comply with environmental law.

Let us suppose that the OEP receives a request for the underlying data on which it has based a statement about air or water quality. If that information has come from a body with public functions, it will be subject to the prohibition. The OEP could disclose this after it had decided to take no further steps about the matter—but when would that happen? Monitoring is an ongoing process. The publication of an annual monitoring report under Clause 27(7)—which is unlikely to contain the complete monitoring data—will not mark the end of the OEP’s involvement. The problem revealed by the monitoring may persist for years, endangering human health or the environment. The OEP may need to advise the Minister, perhaps repeatedly, to address the matter. It may need to investigate any failure to comply with environmental law. The more serious the problem, the longer the prohibition will continue to prevent disclosure—an absurd situation.

The information, of course, might be disclosed if the body supplying it consents; but it may not do so, particularly if the information shows that the problem is the result of its own failings. The withholding of such information would be a serious blow to the public’s right to know, to informed public debate and to public confidence in the OEP. It is almost inconceivable that such data could be withheld under the EIR. To do so, an authority would have to show that disclosure would “adversely affect” a specified interest, consider whether the public interest required disclosure, and apply

“a presumption in favour of disclosure”.

If the information concerned emissions, significant EIR exceptions, such as those for commercial confidentiality or the interests of a person supplying information voluntarily, would be disapplied altogether. How does a blanket prohibition on disclosure, which takes no account of the public interest, advance environmental protection? And by the way, I realise that a member of the public could go with an FOI request direct to the body concerned, but how do they know what the body is going to be? That is the point: we will not know unless people are told.

The same obstacle would apply to information which an authority had supplied to the OEP in the course an OEP investigation. It could be disclosed only when the OEP had decided to take no further action or the body supplying the information consented. Again, this contrasts this with the EIR approach. EIR regulation 12(5)(b) allows an authority to withhold information if disclosure would

“adversely affect the course of justice, the ability of a person to receive a fair trial or the ability of a public authority to conduct an inquiry of a criminal or disciplinary nature”.

The Information Commissioner’s guidance highlights the “very wide” scope of the “course of justice” limb of this exception, which it says applies to information about law enforcement investigations or proceedings and civil and criminal investigations and proceedings. This is how information the disclosure of which might undermine law enforcement is protected by other regulators, including the Environment Agency, local authorities, the Health and Safety Executive and the police. To withhold information, they must show that disclosure would adversely affect the course of justice and that, on balance, the public interest favours confidentiality.

In 2017, the tribunal that deals with EIR and FOI appeals ruled on a request relating to a factory at which a fatal explosion had occurred. It held that a request for the findings of an earlier investigation into the factory should be denied because the information was likely to form part of the prosecution case, and media coverage of that investigation would have compromised the remaining police interviews and risked jeopardising a fair trial. However, in a 2007 decision involving a fatal outbreak of food poisoning, the tribunal found that disclosure in that case would not affect the trial. It commented:

“A blanket refusal to disclose all potentially relevant information may well not be justified. A public authority … ought to give careful consideration to the potential effect on the criminal proceedings of the particular information being requested ... but if, on a sensible reading of the documentation in question, its disclosure would not adversely affect the prospects of a fair trial, then the fact that the information has some connection with the subject matter of a prosecution will not be sufficient justification for nondisclosure ... on the special facts of this case, the disclosure ... would not have adversely affected the accused’s ability to have a fair trial.”


Amendment 108A would remove the reference to Clause 26(1) from Clause 42(1)(a). Information provided to the OEP by bodies with public functions could then be disclosed on request, subject to the EIR exceptions. Amendments 108B and 108C would permit disclosure for the purpose of complying with the EIR or FOI Act or subject access under data protection legislation. This is what the Explanatory Notes say is already the position. If so, the Government should have no objection to stating that on the face of the Bill. If the prohibitions in fact override EIR right of access, the UK will be in breach of Article 4 of the Aarhus convention, which requires the UK to provide a statutory right of access to environmental information. It does not permit information to be withheld on a class basis. The public interest in disclosure must be taken into account and exemptions applied in a “restrictive way”.

Clause 42(7) addresses a separate issue. It refers to the information to which Clauses 42(1) and 42(3) would apply, disregarding the exceptions to these prohibitions. The clause provides that, where information is “environmental information”, it will be considered to be held

“in connection with confidential proceedings”.

This would bring it within the range of an exception in EIR Regulation 12(5)(d), which states that

“a public authority may refuse to disclose information to the extent that its disclosure would adversely affect ... the confidentiality of the proceedings of that or any other public authority where such confidentiality is provided by law”.

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[Lord Goldsmith of Richmond Park (Con)]

I thank the noble Lord, Lord Rooker, for his introduction. He is right to emphasise the importance of transparency, a point made equally well by my noble friend Lord Lucas and the noble Baroness, Lady Jones.

I reiterate the position on information disclosure for the OEP. The Government have been clear that the environmental information regulations and the Freedom of Information Act will apply to information held by the OEP and public authorities. The Bill does not in any sense override that legislation. The OEP would have to consider any request against the relevant legislation on a case-by-case basis.

The OEP will assess whether any exemption or exception to the relevant regime applies to the information. If so, it will consider whether a public interest weighing exercise is required under that exemption. If a public interest test is required, it will carry out a balancing exercise before deciding whether the public interest requires that the information should be disclosed or withheld.

Turning to Amendments 108A to 108D, tabled by the noble Lord, Lord Wills, although I agree that it is important that the OEP operates transparently, it must be allowed the discretion necessary to operate effectively. The OEP’s enforcement framework has been designed to resolve issues as effectively and efficiently as possible. To do so, it is important to have a safe space where public authorities can confidently share information and allow the OEP to explore potential pragmatic solutions before issuing formal notices. The noble Lord’s proposals would effectively remove that forum, meaning that public authorities might prefer to advance to more formal stages where information disclosure exemptions may apply due to confidentiality of proceedings. That would undermine the framework and result in slower resolution and poorer value from public funds.

On Amendment 114A, Clause 45(2)(a) excludes the disclosure of or access to information from the OEP’s remit. These matters are explicitly excluded in order to avoid overlap between the remit of the OEP and that of the Information Commissioner’s Office. This is further clarified in paragraph 383 of the Bill’s Explanatory Notes. The existing drafting of this provision allows greater flexibility to ensure that overlaps are avoided. Not only does it allow the OEP and courts to decide on the meaning of the exemption to the OEP’s remit on a case-by-case basis; it accounts for any future changes to relevant legislation that may cause overlap between the two bodies. The Information Commissioner’s Office will still have the remit to uphold information rights in the public interest, promoting openness by public bodies and data privacy for individuals.

I hope that answers the noble Lord’s questions and I ask that he withdraw his amendment.

[Lord Rooker (Lab) [V]]

My Lords, the Minister has spent just three minutes on this crucial part of the Bill. I will not try to respond now; I will take advice on what he said, but we will no doubt come back to this issue on Report. I beg leave to withdraw the amendment.

Amendment 108A withdrawn.

Environment Bill

Lord Rooker Excerpts

Committee stage
Monday 28th June 2021 Lords Chamber

[Lord Whitty (Lab) [V]]

My Lords, there has been near unanimity in condemnation of what is currently in the schedule to deliver a really independent body of the kind we want. As the noble Lord, Lord Cameron, said in a formidable opening address on the group, we want to create the same degree of fear, almost, in public bodies that the possibility of the European Commission intervening and fining this country provided before Brexit. What is envisaged in the Bill goes nowhere near that.

Frankly, we know that there are precedents for what happens to so-called independent bodies. I had expected to speak after my noble friend Lady Young and just before my noble friend Lord Rooker. It is instructive that one was the chief executive of the Environment Agency and the other the chair of the Food Standards Agency. When the Environment Agency was first set up in the 1990s, to which the noble Earl, Lord Caithness, just referred, there was a lot of talk about independence, but in fact it became part of the Defra family. Its independence was limited by successive Governments over the whole of that period. Under the coalition Government, it was restricted from briefing parliamentarians or engaging in anything that amounted to a campaign in the eyes of the then Government. Subsequently, of course, its funding has been seriously cut. The Environment Agency is doing an effective job on limited resources, but it is not independent of government.

The other example is the Food Standards Agency. The FSA is a non-departmental body, but as soon as it started straying into areas of interest to the Department of Health on diet, health advice and well-being, those functions were taken off it and ploughed back into the Department of Health. It was right to take it out of its origins in MAFF, but in practice it was never completely independent of government, much though the efforts of my noble friend Lord Rooker and others tried to make it so.

We want a truly independent body on the environment to face up to the immense challenge of climate change and biodiversity diminution. This is not it. I agreed with pretty much every word that the noble Lord, Lord Cameron, said. I do not entirely agree with his amendment—like others, I prefer the amendment in the name of my noble friend Lady Jones of Whitchurch—but, as recent speakers said, the Government really do need to take notice of the overwhelming view of the Committee that this will not do. To be truly independent, the OEP needs not just a formal position and designation as a non-departmental body; it needs powers, which are insufficient in the Bill; it needs provision for how its composition is established, which is not fully in this Bill; and it needs powers of enforcement, which we will consider later in Committee and which are, at the moment, clearly completely inadequate to the task.

This is the central part of the Bill. The Government have to think again. If they can come up with a better proposition then let us seriously consider it, but what is in the Bill at the moment is not adequate. None of us believes that it is, and I doubt whether the Government themselves—and the Minister in particular, if I may say so—really believe that it is. Let us think again and try to get something better before the Bill completes its course.

[Lord Rooker (Lab)]

My Lords, I agree on the importance of this part of the Bill. Indeed, it is the only part of the Bill that I dealt with at Second Reading, on governance issues. The noble Lord, Lord Cameron, introduced Amendment 82 very well. We might argue, but as the noble Lord, Lord Cormack, said, somewhere there is an alternative to what is in the Bill. We just have to find it, because the Minister and his advisers will appreciate that this will not get through the House.

I sat on the environment sub-committee of the Lords EU Committee for a few years. The early promises about the governance gap are not being filled with this Bill. I will not quote again the article that Michael Gove wrote in November 2017, when he was Defra Secretary of State, accepting the fact that there is a gap, but I will refer to what the noble Lord, Lord Cameron, referred to, which is the 30 out of 34 wins by the European Court of Justice on environmental issues. You have to ask yourself about this: it won on 30 out of 34 cases. That meant that the UK Government were refusing to do something that caused them to be taken to court. Both parties were involved, by the way. The UK Government did not want to do something—whether it was cleaning up the beaches, making water safer, it does not matter: they did not want to do it. But the European Court of Justice and the Commission took the case to the court, and the court decided, “Yes, you will”, in 30 cases out of 34. When I checked, the other four were undecided.

I know from my own experience inside the department that the threat of infraction meant that you got cracking, talked to the Treasury and said, “Look, we ought to do this. Can we have a few more quid or move some budgets around to satisfy this? Otherwise, we’ll be penalised with a bigger fine than what this will cost us.” That is what actually happened in some cases. I know from experience that this is the way that it works.

I also know, of course, that Defra loves control. In my first two years as a Minister, from 1997 to 1999, I was at MAFF. I was then at Defra from 2006 to 2008—the same department, basically. The point that I am making is that the culture was the same; it was about control. This probably would not happen, but it would be very interesting to have some interviews—exit interviews would be the wrong thing—with people who are no longer serving on some of the bodies, particularly Natural England and the Environment Agency, as to what happened. I know to my certain knowledge that Defra leant on Natural England.

When we were setting up the Food Standards Agency in 1998 and 1999—I might add that my noble friend Lord Whitty was wrong on this, as it is a non-ministerial department with a different structure from a non-departmental public body—I discovered, because of the capacity and willingness of Defra civil servants to adhere to the policy of the Government, that there was an attempt at the highest levels in Defra to convert that agency to an executive agency of MAFF. The department wanted to keep control, even with all the problems we had in setting up the agency. Despite the report from Philip James and the manifesto commitments, they still thought at the last minute that they could keep it as an executive agency. It would have been the ultimate control, if you like, of having an executive agency compared to a non-ministerial department.

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So, even if the Government do not accept the detail of these amendments—although they seem sensible and consistent to me—I hope they will accept that the principle of having a clear, agreed five-year budget with a review and a work programme set out is desirable. If the Minister can give us any insight into how that is emerging, I think the House would be very pleased to hear it. I am happy to support these amendments.

[Lord Rooker (Lab)]

My Lords, very briefly, the Bill does not require the Secretary of State to pay. Subsection (1) requires him to pay what he thinks is reasonable, which is not altered by this. I see the benefit of a five-year budget, but the key point is to have it published. That way, the Select Committees and the National Audit Office can check on performance. Looking at proposed new subsection (5) and its detail about the work pattern, if they do not deliver an effective framework that is economic, they will be called to account by the Public Accounts Committee. The NAO needs to know what their plan for the budget was to start with.

So the key issue in this amendment is for the budget to be laid before Parliament and published. Publishing the budget is unusual for non-departmental public bodies. Non-ministerial departments are different, because their budget is separated out, and outsiders can check whether the funds are being cut. It is not always possible to do that with executive bodies and non-departmental public bodies. Publishing it means that the NAO and the Select Committees in the other place can check whether or not the Secretary of State paid them what they thought was necessary to do the work they planned to do. If the work is not done, someone needs to find out why; it is much easier to do that if you had a published budget to start with.

[Lord Krebs (CB)]

My Lords, in speaking briefly in support of this group of amendments, I refer back to the budget of Natural England. I seek absolute assurance from the Minister that the OEP will not suffer the same fate as Natural England has.

Between 2010 and 2020, Natural England’s budget was cut by almost two-thirds. In a letter to the chair of the Environmental Audit Committee in another place, dated 2 November 2020, the chair of Natural England, Tony Juniper, wrote:

“Natural England’s current funding is below the level required to deliver all of our statutory duties to a good standard. That in itself presents several key risks including increased legal challenge, lost opportunities for environmental enhancement and the wider effect that presents on wellbeing.”


He went on to list the areas of work that had been curtailed or reduced as a result of the funding cuts. These included land use planning, species recovery, wildlife licensing, national nature reserves, SSSIs, landscapes, agri-environment, evidence gathering and partnership funding, for instance for community-based initiatives with parish councils.

The Secretary of State acknowledged to the Environmental Audit Committee that the cuts had been severe and, in May this year, Natural England had an increase of 47% in its budget. In spite of this increase, Natural England’s budget for 2020-21 of £198 million is still below the £265 million it received in 2008-09. In going into this example in some detail, my point is that we certainly do not want to find the OEP, in five or 10 years’ time, in the same state as Natural England has found itself, with the consequent damage to our environment.

To repeat what I started with, I very much hope, therefore, that the Minister will confirm that the OEP, with a long-term settlement, will have sufficient resources to carry out its job; and, importantly, that when there are cuts to government expenditure across the board, which there will no doubt have to be to pay the huge bill that we have racked up as a result of the Covid pandemic, the OEP will be one of the protected areas and will not just take a salami slice along with everybody else.

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[Baroness Parminter (LD)]

My Lords, it is a pleasure to follow the noble Baroness, Lady Neville-Rolfe. We often agree but on this occasion I have to say that we do not. I shall speak briefly because the noble Lord, Lord Krebs, introduced so eloquently the amendment to which I put my name, concerning Clause 24 stand part. It would remove this clause, which would give the Secretary of State the right to give guidance to the OEP that it must have regard to in preparing its enforcement policy.

I do not want to repeat points that have already been made, so I shall merely congratulate the Select Committee on the Constitution, which is very ably chaired by the noble Baroness, Lady Taylor of Bolton, and refer to two points that it made. The committee said that:

“Guidance is a poor substitute for clear rules”,


and it is correct in saying so. That goes very much to the point made by the noble Lord, Lord Krebs: when it is guidance, it is hard for us to judge how wide-ranging or how constricting it will be to the independence of the OEP, but it could be very wide-ranging and that is one of the reasons why I am concerned.

The Constitution Committee also said:

“The power to issue guidance on the OEP’s enforcement powers could call into question how independent it will be.”


For me, that is the nub of the issue: it is about the public perception of how independent this new watchdog will be. At a time when there is increasing concern about public confidence in public institutions and indeed in politicians, we need to ensure that this new body is seen to be not just as independent as we would wish it to be but as independent as it needs to be.

It is not acceptable for the Minister to say, “Oh, we’d only use this guidance as a last resort”. As the noble Baroness, Lady Neville-Rolfe, said, we have a very independent-minded interim chair of the OEP at the moment; however, that may not be the case in future. Irrespective of that, we need to be clear that it has to be set down in statute that this is an independent body with the power to set its own enforcement policy. I am afraid that any indication that the Government can somehow meddle by looking into matters in other bodies within the Defra family just does not cut the mustard. I therefore feel very strongly that Clause 24 needs to be removed.

[Lord Rooker (Lab)]

My Lords, briefly, the Minister would be well advised to pay attention to what the noble Baroness, Lady Ritchie of Downpatrick, said. The Northern Ireland situation is not a coalition; it is a power-sharing Executive. The parties carve up the ministries. I had one year as a Minister when there was direct rule. I had planning and the environment among other responsibilities and duties. I discovered that most of the political parties there do not believe in planning. They would like a bungalow in every field. That is the situation: if you fly over Northern Ireland, have a look at it. Imagine a bungalow in every field, with the waste and everything else. “If you own land, you can do what you want with it”: that is what I was told. So it is a really sensitive issue to get the wrong person at the wrong time. It would be terrible to meet without someone representing Northern Ireland, but we should be aware of the way the d’Hondt system allows the parties to control the ministries.

Like the noble Lord, Lord Krebs, I heard the Minister say that there is no requirement to follow the guidance. I wrote it down at the time. That is interesting. I would love to be a fly on the wall the day the department’s lawyer goes to see the Minister and says, “Well, Minister, it only says you ‘must have regard’. You want to do this, that and the other and do your own thing, but it actually says you ‘must have regard’. Here’s all the reasons why you have to have regard to what the Secretary of State says.” Before you know it, there will be a threat of malfeasance on the office, because it has gone against having regard to a sufficient extent of what the Minister said.

How do you measure “have regard”? I realise that I will be followed by lawyers; I am not a lawyer, but I have been there when the lawyers have come in and said, “You can’t do this because you’ve got to take account of this, that and the other.” That is the pattern: it is the way advice to Ministers from the department’s lawyers works. I am not criticising or complaining about it; I am just saying that that is the way it works. So, if it is not clear in the legislation to start with, we are building up trouble. There are therefore good grounds for taking Clause 24 out of the Bill.

The noble Lord, Lord Krebs, reminded me that in February 2017 I too had the privilege of being on the EU sub-committee, chaired by the noble Lord, Lord Teverson, when we arrived at this. I remember doing fringe meetings at the Labour Party conference the year before when the sector was waking up to the fact of the governance gap. As I said at Second Reading—I will not read it all out—Michael Gove had woken up to it by 13 November 2017, when he said that there has to be mechanism to replace what we are losing because of Brexit. He went on to say we would have

“a new, world-leading body to … hold the powerful to account. It will be independent of government, able to speak its mind freely.”

That was not a speech; that was a published article, authored on GOV.UK.

My final point is this. I know that it is easy and people will say that we have unaccountable agencies and this, that and the other, but sometimes they are a comfort blanket to Ministers. Situations arise in society where the public do not believe what they are told by Ministers. Going back to the time before I entered government, that was the situation regarding food safety: a collapse in confidence in what people were told by Ministers. That is one of the reasons a semi-independent body was set up, so that Ministers do not have to go on telly and say, “The food’s safe—please eat it”. People did not believe them. The technical people, the scientists and those who are qualified to have a view go on when there is such a situation—the noble Lord, Lord Krebs, is aware of that, having set up the agency.

I was originally partly responsible for some of the legislation that set it up; I certainly never forecast that I would be the chair. However, the fact is that these bodies are useful in certain circumstances because the public have a trust in them. It is important that the public have that trust; I will not start to imagine what kind of environmental problems there would be where there is public uproar and where Ministers find it very useful to have an expert body that is able to speak to the public and engender their confidence. Believe you me, I am giving this away for free. It can be a bonus for Ministers, and they ought to wake up to that fact.

Environment Bill

Lord Rooker Excerpts

Committee stage
Monday 21st June 2021 Lords Chamber

[Lord Teverson (LD)]

My Lords, I declare an interest as chair of the Cornwall and Isles of Scilly Local Nature Partnership, I am a trustee of the Green Purposes Company that holds the green share in the Green Investment Bank, and I am a director of Aldustria Ltd.

We have recently had the G7 in the part of the world that I live in: Cornwall. Never mind the increase in Covid-19 in those areas since—other than that, it was a very successful bringing together of global leaders. I like to think that one of the reasons our Prime Minister chose Cornwall was because of its natural environment, its beauty and, for that weekend at least, its good weather. I ask the Committee to keep this to itself but the weather is not always quite like that in Cornwall, but it was on those two to three days, I am pleased to say.

Many visitors come to Cornwall and the Isles of Scilly for their staycations because of that great environment but I have to tell the Committee that, on a local basis, biodiversity in that far south-west region is as on the brink as it is elsewhere. For instance, half our mammals are found in fewer places, three out of five of our butterflies are in decline, eight of our bumblebee species have disappeared over the last few years, and some 40% of our breeding birds are in decline. That is in an area that we think of as being beautiful in terms of its biodiversity and its natural heritage.

This is reflected nationally: in the UK we have failed to meet some 17 of our Aichi targets—the targets set 10 years ago at the Convention on Biological Diversity. Some 15% of our species are threatened with extinction; we have a reduced distribution of a quarter of our species, and four out of 10 are in decline. We saw in the Woodland Trust report that only 7% of our forests and woodlands are in good order. So, we have biodiversity as a crisis together with climate change. They are crises and they are emergencies. I think there are very few people who would dispute that at the moment.

One of the interesting things to come out recently, in fact in the last week, is a report —not just by the IPCC on the climate change side, but the IPBES on the UN biodiversity side—that says that these two crises are inextricably linked. One cannot be solved without the other; they are twin crises that are, in effect, Siamese twins as we would understand them. I will talk more about the biodiversity crisis—we are very aware of the climate change crisis. It is a crisis where we believe that we are entering the sixth extinction on the planet. The previous one was the dinosaurs, thought to be caused by an asteroid, but the sixth extinction that is happening at this time is uniquely, clearly and obviously the only one that is due to one species—homo sapiens.

Why is this important? It is not just about cuddly animals or health, welfare and being able to have access to the countryside and to nature. It is because we rely entirely on the ecosystem services that biodiversity affords us, be those pollination, healthy soil, clean water, clean seas or a whole panoply of ways that not just we as individuals but our economy survives. Again, in the south-west, this is certainly true of tourism, fisheries and agriculture, but it is true of industry generally and of our economic well-being. Because of that, I have brought this amendment forward.

It is a particularly auspicious time because this year we have not just COP 26 on climate change in Glasgow in November but COP 15 of the biodiversity convention in Kunming in October. These two important international conferences are coming together towards the end of this year, but, we hope, after this Bill squeezes through Royal Assent and becomes an Act, which we want to happen quickly. It is an ideal opportunity to illustrate to the world how the United Kingdom sees these crises as important and as inextricably combined emergencies, where we can show leadership.

Why this amendment and why in this Bill? First, if local authorities can blaze the trail in this area, our own Government and this Parliament should be able to do so as well. Some 230 local authorities have declared a climate change emergency. Around 15% have declared a biodiversity emergency. They include Bath, Bristol and Brighton, and they are across the political spectrum. A number of other local authorities have declared a combined emergency, including Cambridgeshire, Bournemouth, Windsor, Maidenhead, Brent and Ealing. I am sure all of us can point out those of our own political choice.

Another reason this is important is that, just as the Government have said, this is a landmark Bill. It is critical to how this country moves forward in terms of its environment and even broader issues. What better place is there for the Government to declare this double emergency?

Another important thing is that while there is awareness across this House of the biodiversity crisis, there is less awareness of it more broadly. Climate change is more obvious. This amendment gives an opportunity to give equality to those two issues—to give greater visibility to the biodiversity problem.

Lastly, this amendment gives us a real opportunity to give leadership in both COP 15 and COP 26. These emergencies exist. They are one and connected in so many ways. This gives the opportunity—better than any other way—to show that the United Kingdom, the Prime Minister, the Government and this Parliament give these emergencies the priority they deserve.

[Lord Rooker (Lab) [V]]

My Lords, I have set myself the target for Committee not to make the mistakes of other Committee stages by making mini Second Reading speeches before I get to the amendment. So I will be really brief, because I agree 100% with the points and the amendments from the noble Earl, Lord Lindsay. Business needs clarity. A single objective gives that clarity, and the Minister would be making a big mistake if he did not find a way to clean up the front of the Bill, because it is in his and all our interests that business, which is going to make this work, can be absolutely clear about the objectives. For that reason, I support the noble Earl’s amendments, and I hope the Minister will give a positive response.

--- Later in debate ---

[Lord Rooker (Lab) [V]]

My Lords, we have just heard from the noble Lord, Lord Blencathra, with whom I agree in every respect on this subject, that legislation should be precise and intelligible. That is what this is about. If I may give a short history lesson—only a couple of minutes—I will describe my first encounter with the phrase “precise and intelligible” in 1975 in the House of Commons, when a report headed Preparation of Legislation was presented by Sir David Renton, then the MP for Huntingdonshire. He never stopped talking about that report, and when I arrived in your Lordships’ House exactly 20 years ago, he was on the Benches opposite, still talking about the report Preparation of Legislation. He took Bills and amendments apart, and the number of times we had changes because of his scrutiny was enormous. I have also looked at the 2013 Parliamentary Counsel report, When Laws Become Too Complex. This is what this amendment is about: making legislation precise and intelligible. Most of what we have passed is not. This is a chance to actually make sure that it is.

[Lord Hope of Craighead (CB) [V]]

My Lords, it is a pleasure to follow the noble Lord, Lord Rooker. Words matter; so too does the meaning that we give to them. That is especially so where targets are being set that will influence policy in a matter as far-reaching as the environment. That is why the noble Lords, Lord Blencathra and Lord Randall of Uxbridge, were right to bring forward these amendments so that we can consider whether the choice of the word “biodiversity” to identify one of the priority areas in Clause 1(3) was well made, or whether it should be replaced by the word “nature”, as is being suggested.

I wish to concentrate on the use of words in this clause. I say nothing about the wording of Clauses 95 and 96 and others, except that it seems to make sense to follow whatever the choice is for Clause 1 when deciding what is right for those other clauses too. For me, the choice in Clause 1(3) should be guided by two things: the context, and the meaning of the word “biodiversity” itself.

The context for the choice of words in Clause 1(3) is created by the wording of Clause 1(1). We are told there that the long-term targets that the Secretary of State must have in mind relate to “the natural environment”. That suggests to me that when we come to Clause 1(3), we should expect to find, if I can put it this way, a list of subspecies within the natural environment rather than a repetition of the parent concept itself, embraced by the word “nature”. The word “nature”—the parent concept—embraces everything that comprises the phenomena of the natural world or, as Clause 1(1) puts it, of “the natural environment”. That suggests that we need something more specific and precise to serve the purpose of Clause 1(3), which is to identify the priority areas within that environment. The question then, therefore, is whether “biodiversity” achieves something for the identification of a priority area that “nature” would not achieve.

I was surprised to find, when I was consulting my dictionaries, how recent the word “biodiversity” is in the English language. Everyone talks about nature, said the noble Lord, Lord Blencathra, and he is absolutely right: it is so much in common use, and “biodiversity”, as the dictionaries indicated to me, is not in common use in that way. It is not even mentioned, let alone defined, in the editions of the Shorter Oxford English Dictionary that I have, which were published in the 1990s. It is a mark of our increasing awareness of the importance of the variety and variability of life on earth and its preservation that we have created this portmanteau word to describe it. “Diversity” is what we are talking about when we use this word. The prefix “bio” makes it clear that we are using that word in the context of the natural environment in all its aspects which, of course, is the context in which we are using it here. In that context, it is no exaggeration to say that diversity is what keeps the environment alive. It is absolutely right to concentrate on diversity as a priority area.

I suggest, therefore, that the word “biodiversity”, although not so widely used as “nature”, is the one to use because it is more precisely targeted on that aspect of our environment. It achieves that much more than “nature”. It reaches out across the entirety of the ecosystem, on which the natural environment depends, and the diversity that gives it its life. With great respect to the two noble Lords, I believe that it is the right word to use here in this Bill.

--- Later in debate ---

[Lord Taylor of Holbeach (Con)]

My Lords, I see this as a key grouping and I intend to speak to Amendment 10, moved so ably by my noble friend Lord Randall of Uxbridge. It is ironic that we are debating this issue on the day of the summer solstice. However, I am an enthusiast for the Bill, and I think I share that with the previous speaker—although perhaps she is more prone to amending the Bill than I would be. I want to see the Bill on the statute book and, from past experience, I am averse to yet another approach to lists. Dream or not, they do not appeal to me, so it must be really something to get me to seek a change in a Bill.

However, light pollution is a real contamination of our environment. My noble friend drew the attention of the House to the briefing from Buglife, which I too have read, but it is there for us all to see. Light pollution affects not only human health, animal health and bird health; it affects insect health—not only how they function but how they can act as pollinators. There are serious environmental consequences of light pollution. I believe that Amendment 10 picks up on the need for the Bill to allow the Government and local government to set standards, to measure, to monitor and, if necessary, to control, avoid and reduce light pollution.

I must declare my interest in that I am a founding member and vice-chairman of the APPG for Dark Skies. The group was inaugurated by the noble Lord, Lord Rees of Ludlow, and my honourable friend Andrew Griffiths in another place.

There has been a revolution in lighting: you get a lot of lumens for your buck nowadays. Lighting, properly used, is a good thing. It helps us with road safety and street safety, and with personal and property security. All these things benefit from lighting. But, living in a fenland landscape, I can say that bright lights over a porch doorway from a mile away are not a pretty sight. Lighting installed incorrectly and used inappropriately is a menace.

Closer to home, there is a new development that provides a strong focus for the need to control light pollution. Noble Lords will know what I am involved in intensive horticulture, and I am familiar with Westland, in the area of Rotterdam in the Netherlands, which glows in the night sky as it produces crops. Nearer to home, I am familiar with the Chichester plain, which also has an extensive glass area under lighting. We are now looking at vertical farming, and that after all poses many of the same challenges.

I believe that by putting this amendment in the Bill, we will have regard for this issue. If we are not going to lose the magic of the night sky, we need to do so. Last night, I watched the programme by Brian Cox on the magic of the heavens. They are a fascinating thing and our birthright. It would be a tragedy if by carelessness we lost this for humankind. I support the amendment.

[Lord Rooker (Lab) [V]]

My Lords, I am delighted to follow the noble Lord, Lord Taylor. I put my name on this group only because I want to support Amendment 10. I will not repeat a lot of what the experts said, particularly the noble Lord, Lord Randall of Uxbridge.

Before I say anything about Amendment 10, I want to advise the Minister. In the previous debate, I referred to the preparation of legislation report in 1975. I advise his office to look at the 2013 government report from parliamentary counsel, When Laws Become Too Complex. He does not have to read it all, but it makes a couple of good points about why laws become complex and why Bills have grown: because every group you can think of wants its bit in the Bill. We know it is a competitive arrangement out there from the kind of briefs we get. We get multiple briefs these days, with maybe 20 groups joined together to save us getting 20 separate ones. We need to be very wary.

The idea is to get the Bill and get some action. That is probably more important. The average size of a Bill in 2009—there is obviously some delay here because I take this from the 2013 report—was 98 pages. This Bill is more than twice the average size of a Bill in those days. It already has a huge number of issues that have been planted there by what I will call pressure groups. I am not being critical, by the way, because I agree with many of the speeches that I have heard this afternoon, but I would rather have the Bill and some action than delays to get the holy grail—it will not work.

On light pollution, I was one of those who always approved of permanent summer time—we never managed to get it through—because I think it would be a good idea. I realise there is a problem; the Scots do not want it. It is one of those issues, but I am in favour of it.

The fact of the matter is that presently the Government’s planning guidance, which I think was updated in November 2019, gives advice and guidance but no action. It talks about the common causes of complaints to local authorities. We all know about domestic, shops, exterior security and insensitively positioned decorative lighting. I live—looking out of the window—in Shropshire. I live in the middle of Ludlow, so it is not completely light free, even at night. One or two buildings leave on their security lights, there is street lighting, and even the railways. But the fact of the matter is that looking at the night sky is difficult anywhere in England these days. I also saw the programme with Professor Brian Cox last night. They could not have taken those photographs of 13 billion light-years away with the kind of pollution we have here.

It is the kind of lighting. No action is being taken on the Government’s guidance—I do not think that local authorities do anything on white light sources or filtering out the blue and ultraviolet light. That can be a problem for some people, and not just people. As the noble Lord, Lord Randall, said, the guidance is only for people and does not take account of the billions of creatures we share this planet with. They are being lost because of light pollution. There is a strong case for putting this amendment in the Bill so that we can get some action.

Environment Bill

Lord Rooker Excerpts

2nd reading
Monday 7th June 2021 Lords Chamber

[Lord Rooker (Lab) [V]]

My Lords, I intend to confine myself to governance issues. If the Bill is left as it is, it will not take long for the public to lose confidence in the protection and enhancement of the environment. I make no apology for reminding the House of an issue that I have raised several times before, regarding the governance gap on leaving the EU. The first of the latest two times was on 7 March 2018, during a debate on the EU withdrawal Bill, when I raised the issue of the EU Commission taking the United Kingdom to the ECJ on environmental issues on 34 occasions and winning on 30 of them; the other four remained in dispute. Both Labour and Tory Governments opposed the Commission, causing it to take action. If it had been left to the Government, we would not have had the benefit of the Commission’s upgrades to the UK environment. I did the same again on 2 July 2018, during a debate on the NERC Act 2006 report. It was the threat of infraction—that is, the EU financial fine—which stimulated the UK Government to act in the interests of a better and safer environment. I pointed out, in col. 412, that Defra was in control and “loves control”; it is part of the culture. It was the same when Defra was MAFF. I was in both, several years apart, and the culture has not gone away. I could also warn that Defra, as old MAFF, wanted to have the Food Standards Agency as an executive agency of MAFF.

The threat of infraction—a fine on the UK Government—has gone; we are, therefore, left with a gap. Anyone who disputes that should look at the opinion piece by Michael Gove published on 13 November 2017 when he was the Defra Secretary of State. This is an authored article, on GOV.UK, on the new independent body for environmental standards. I will give two quotes from it. He said:

“Some of the mechanisms which have developed during our time in the EU which helpfully scrutinise the achievement of environmental targets and standards by Government will no longer exist in the same way, and principles which guide policy will have less scope and coverage than they do now. Without further action, there will be a governance gap. The environment won’t be protected as it should be from the unscrupulous, unprincipled or careless.”


He went on to forecast

“a new, world-leading body to … hold the powerful to account. It will be independent of government, able to speak its mind freely.”

This Bill, with the office for environmental protection, does not do that.

I am not a lawyer, but before I read the note from the Bingham Centre for the Rule of Law on this Bill and the OEP I had worked it out. Now that I have read the detailed Bingham briefing, I can see how shoddy the proposal is. Bingham takes apart Clause 37, regarding the power of the OEP and the environmental review. On the principle of legality and remedies in breach of environmental law, the question is:

“In plain English, if a public authority breaks the law, can it be brought to a court, and can the court correct the wrong?”


The conclusion is that Clause 37(7)

“does not satisfy the Rule of Law.”

An act of a public authority can be unlawful but the act “remains valid”, so the unlawful environmental acts are “valid by default”. This is the

“‘new normal’ under clause 37(7)”.

As the Government’s Explanatory Notes to the Bill say,

“the statement of non-compliance confirms that the court has found that the public authority in question has failed to comply with environmental law, it does not in itself invalidate the decision of the public authority in question.”

According to Bingham, this means that the ruling from a court

“will have zero legal effect. What then is the point in an environmental review?”

The remedy on damages in Clause 37(8) presents a problem. The Bingham conclusion is:

“The lack of a remedy in damages combined with the inability of the OEP to impose fines weakens the ability of the OEP to provide effective sanctions for breach of environmental law.”


This introduces the novel “polluter doesn’t pay” principle.

Returning to Michael Gove’s promise of a world-leading body being independent of government, the Bingham conclusion is:

“The OEP does not have an express statutory duty to be independent of the Government or of public authorities, nor does it have institutional guarantees of independence. The language of the Bill indicates the … OEP to be impartial, but not fully independent.”


In effect:

“The ability of the Secretary of State to issue guidance on enforcement policy and enforcement functions opens up the real possibility of the Secretary of State issuing guidance on how the Secretary of State is to be investigated.”


This is preposterous. As Bingham says, this is

“at odds with sound administrative practice and undermines the Rule of Law.”

The Defra Secretary of State owns the OEP lock, stock and barrel:

“This lack of independence compromises the ability of the OEP to pursue effective remedies for breaches of environmental law.”


If there is any doubt that stronger powers are needed, the fact was published last week that, of 640 bathing sites in the UK, only 110 are judged to be excellent by the Environment Agency. UK bathing water was the worst in Europe in 2020. The only reason that it has improved in past decades is due to the Commission taking the UK to the European Court of Justice, which is where I started. This Bill needs big changes.