Environment Bill

Lord Thomas of Cwmgiedd Excerpts

Wednesday 15th September 2021 Lords Chamber

[Lord Thomas of Cwmgiedd (CB)]

My Lords, I will make a few points, which can be very briefly made. The first is to commend the Minister on his acceptance of the two base problems: first, that ecocide is a serious crime; and, secondly, that it is not dealt with effectively.

There are, in turn, two solutions. The first is a model law; we are not on that tonight, so I need say nothing about it. The second is the ICC, and on the ICC there are again two points. First, the Minister said on the last occasion that reform of procedure is needed. I agree, but reform of procedure can go hand in hand with a reform of substantive law. We do it in this country all the time, as they do in almost every other country. If you left procedural reform as a precondition of moving forward substantive law, no country would ever reform its law.

The second point relates to whether it is worth the effort. On the last occasion, the Minister cast doubt on whether there was sufficient wind behind this for it to be worth investing in. From my experience of what is happening on the continent of Europe, I say there is a very significant movement in favour of doing something about ecocide. I very much hope that the Foreign Office will now show a bit more leadership on that count.

That takes me to my last two points, on leadership. First, this must be an opportunity for global Britain to show leadership on one of the most serious criminal offences of our time. We can do it, and we should not fail. Secondly, on the last occasion the Minister kindly agreed to refer these technical legal points to the Law Commission. I will not go into one single technical legal point at this hour of the night; I know it would be greatly welcomed by some but, I am sure, entirely deprecated by almost everyone else. I therefore wish to say that we in this country have always shown leadership in the law. The Law Commission is an outstanding body, and I hope it can be given the opportunity, by what the Minister said on the last occasion, to show leadership by dealing with the technical difficulties and showing that we can come up with a solution both to procedure and substantive law that would be broadly accepted across the world. If I may say so, I commend the Minister on the huge work he has done on this. It just needs a little push more, and we will be back in the leadership on such a vital point.

Environment Bill

Lord Thomas of Cwmgiedd Excerpts

Report stage
Wednesday 8th September 2021 Lords Chamber

[Baroness Brown of Cambridge (CB)]

My Lords, I rise to move Amendment 11 and will speak to Amendment 14 in my name and those of the noble Baronesses, Lady Hayman of Ullock and Lady Parminter, and the noble and learned Lord, Lord Thomas of Cwmgiedd. Both amendments are designed to ensure that the important environmental plans and targets established by the Bill drive strong and effective action. The Bill introduces an important suite of legally binding, long-term environmental improvement targets and provides for these to be guided by five-year interim milestones. Unlike those in the Climate Change Act, these interim milestones are not binding requirements.

In Committee, the noble Baronesses, Lady Bennett of Manor Castle, Lady Hayman, Lady Young of Old Scone and Lady Parminter, the noble Lord, Lord Randall of Uxbridge, and the noble and learned Lord, Lord Thomas, made a persuasive case for these interim targets to be statutory. They cited evidence—lists of non-statutory targets missed, such as those for biodiversity, contrasted with the success and focus of the Climate Change Act. They highlighted human behaviour; a statutory duty in five years’ time will get more focus than one in 20 years’ time—or, as Allegra Stratton, the No. 10 climate spokesperson, has said, 2050 is “too far away”,

“we have to feel the … urgency of now.”

They stressed the need for urgent action. Nature takes time to respond, and there is no hockey stick from new technologies enabling back-ended action. They emphasised the value of transparency; statutory interim targets make progress more visible and the OEP’s role more effective. They quoted business, with the Aldersgate Group’s support for statutory interim targets that give business certainty to invest and act. In short, they outlined a compelling case.

However, the Minister was not persuaded. He responded that interim targets would

“undermine the long-term … targets framework”—[Official Report, 23/6/21; col. 268.]

across political cycles. This perplexes me, because the Climate Change Act demonstrates quite the opposite—that statutory interim targets maintain focus and pressure as Ministers and Governments change. He said that, without statutory targets, Governments might take more ambitious action; it is also perplexing that one might think that statutory targets prevent greater ambition. He said they would lead to “rushed policy-making”. I do not understand how it would be possible to set robust, achievable, science-based, long-term targets—as the Bill rightly requires—without identifying the steps needed to get there. This is exactly how the Climate Change Committee works. The original 80% target and the net zero recommendation could not have been made with any credibility without an analysis of the pathways to achieve them.

The Minister rightly said that we are dealing with complex, living “non-linear systems”. Indeed we are. In my experience as a scientist, it is easier to predict the impact of actions to support such systems over a five-year timescale than it is to predict outcomes in 15 or 20 years, as the noble Lord, Lord Cameron, reminded us on Monday. The Minister said it discourages large-scale change for a focus on quick wins. I might agree with this if we were talking about a five-year target alone, but evidence shows the effectiveness of the combination of statutory interim targets and a legislated long-term goal. I sincerely hope the Government will reconsider their position on statutory interim targets, because the evidence is clear. They would help ensure that the excellent intent of this important Bill is delivered.

I will very briefly turn to Amendment 14. This amendment strengthens environmental improvement plans by linking them clearly to the proposed measures and targets under the Bill and by requiring the Government not just to take steps to improve the natural environment but specifically to set out policies and proposals. Without this clear link to specific measures and delivery of targets, there is a risk that environmental improvement plans will resemble our current national adaptation plan—long descriptions of process with few time-bound actions.

This requirement to set out policies and proposals is the wording in the Climate Change Act. This has led in recent months to a stream of major policy announcements across government departments, including the Prime Minister’s 10-point plan, the transport decarbonisation strategy, the hydrogen strategy, the industrial decarbonisation strategy and the anticipated net-zero strategy—an impressive list, referred to by the Minister on Monday. These are truly important developments for the climate. Do nature and the environment not deserve the same? “Yes” is the message we have heard in many speeches in this debate. The Minister was reassuring in his response on this issue in Committee. I hope he will now accept that we must turn steps into policies and proposals and give nature the focus and funding across government that it so urgently needs.

Binding five-yearly targets on our way to critical long-term goals are such an important issue in terms of the urgency of now that I may wish to test the opinion of the House.

[Lord Thomas of Cwmgiedd (CB)]

My Lords, I rise very briefly to say why I added my name to this amendment. The Bill currently lacks a coherent interlocking scheme, and these amendments seek to deal with that. It is right to warmly acknowledge the huge progress made by the Minister, but as he has said so clearly, the costs of much of this are not yet understood by the public and there are still obvious strong lobbies that will seek delay.

It is therefore very important that there be a coherent scheme with interlocking interim targets, environment improvement plans and long-term targets. I warmly thank the Minister that we have legally enforceable, long-term targets. It is good that we have them, but the really difficult decisions relate to interim targets. They do not easily fit into the short-term electoral cycle; they are not something a politician or decision-maker can say is for a future generation, years and years away. Interim targets are the here and now. Nothing much has changed, as one can see from the great Victorian novelists, “Yes, Minister” or, more tangibly, the targets that have been missed to date. That is why I so strongly support providing for the practical nature of legally binding interim targets.

There is another matter to which, as a legislature, we should have regard: we ought not to be passing aspirational, vague legislation, but legislation which is clear and sets clear duties so that people know where they stand and so that the Government can be held to account. The noble Baroness, Lady Brown, has dealt eloquently with the arguments made by the Government. There is no need for me to add anything to her observations.

[Lord Harries of Pentregarth (CB)]

My Lords, I support Amendments 11 and 14, but actually rise to speak to Amendment 13 in my name. The background to this is an amendment I put down in Committee specifically in relation to trees, tree-planting and tree health. It asked the Government to ensure that an annual report was made to Parliament on how far we had got in achieving the target set in the Bill. Obviously, what is applicable to trees is applicable to every target in this Bill—a whole range of targets will eventually be put forward and I will not go through them all.

The Bill as it stands now says there must be a review within five years of the first review. I suggest that the situation is now so urgent that Parliament needs to consider every year how far we have got towards achieving or failing to meet that target. We are all agreed that there is huge urgency to this, and we need to keep the pressure on year by year in Parliament.

I will never forget a meeting in Singapore in 2020, when one of the major issues facing the world was third-world debt. At the end of the meeting, people from the developing world looked at their diaries and said, “Perhaps we could meet again in three years’ time”, when suddenly a friend of mine—for whom this was literally a matter of life and death in his country—erupted with huge righteous anger which still echoes in my mind. I am not myself given to righteous anger, but I am sure that countries where people are literally now dying as a result of what is happening would have that same anger.

I will not divide the House on this as we have quite enough votes anyway. But I would like the Minister to consider seriously—sharing the sense of the urgency of this, as he does—bringing forward a government amendment to ensure that Parliament has a chance to look at the targets in this Bill every year in order to see how close we are to achieving them, or to what extent we are failing.

--- Later in debate ---

[Lord Garnier (Con)]

My Lords, we are all being very diffident this evening. I apologise because I did not speak at Second Reading or in Committee on this Bill, but I am as concerned as my noble friend Lord Duncan and the two noble Lords on the Cross-Benches about the way this Bill is going to deal with this particular subject. Unless this amendment is made to the Bill, we will be the poorer for it.

[Lord Thomas of Cwmgiedd (CB)]

My Lords, I spoke to and signed the amendment in Committee. I entirely support the new wording. I said in Committee that the judges could be trusted. The Government might have had a little doubt about some of it but, with the changes to the clause, I cannot see what greater protection any Government could legitimately seek.

[Baroness Parminter (LD)]

My Lords, I added my name to this amendment in the name of the noble Lord, Lord Anderson of Ipswich, and we wholeheartedly support it. My particular concern is around the planning issue, which the noble Lord, Lord Duncan of Springbank, has rightly articulated. My worry is that the Government have introduced the provisions they have because they fear that there is currently too much weight given to environmental protection in the planning system. That is something we must oppose. In Committee, the noble Lord, Lord Krebs, said that it

“biases the scales of justice”—[Official Report, 30/6/21; col. 810.]

and changes the balance away from the environment. That is the problem and that is why we on these Benches support this amendment.

Environment Bill

Lord Thomas of Cwmgiedd Excerpts

Committee stage
Wednesday 14th July 2021 Lords Chamber

[Baroness Whitaker (Lab)]

My Lords, it is interesting to hear the views of the noble Baroness, Lady Fox, but I take a different line. As a member of Peers for the Planet, I congratulate the noble Baroness, Lady Bennett of Manor Castle, on introducing the concept behind these amendments to your Lordships’ House and I am pleased to add my name to them.

I confess I was disappointed when my questions to the noble Lord, Lord Goldsmith, about adding the crime of ecocide to the Rome statute received, first, the answer that there were no such plans. His next answer, which I have just received in time—for which I am grateful—adduced various traditional diplomatic reasons, but I still hope we can make a start. I think we should.

Of course, ecocide is an innovatory idea, and innovations are disturbing and disruptive. This one requires different thinking about human rights. The Rome statute and, for that matter, the United Nations human rights instruments have a specific human focus on what is needed to establish and maintain well-being. We in the UK have taken an even narrower view, in that we have not implemented the economic and social rights set out in the convention, only the civil and political ones. But the concept of ecocide is hardly dangerously revolutionary; it was mooted by Olof Palme in 1972 and, as the noble Baronesses, Lady Bennett and Lady Boycott, say, France and others are in the process of incorporating it into their laws.

Our environment is so critical to our well-being that we need to think in new ways about how to protect it from the damage being done to it. I think all your Lordships value our natural environment. That clearly emerges from the debates on this Bill and the answers of the noble Lord, Lord Goldsmith. We should put that into practice by cherishing its biological and botanical elements and, therefore, ought to support efforts to get this into international law.

Already one of our most distinguished human rights lawyers, Philippe Sands QC, is working on how this value can be made justiciable at the International Criminal Court. The definition has now been agreed by all 12 of the eminent international lawyers in the group he chairs. For once, I hope our Government can be a bit ahead of the curve and support these amendments.

[Lord Thomas of Cwmgiedd (CB) [V]]

My Lords, I congratulate the noble Baroness, Lady Bennett of Manor Castle, on tabling these two amendments, which give us the opportunity to consider these important issues. I broadly welcome the principles underlying them both and will take each in turn, first, that relating to international law. Before doing so, I briefly mention, as disclosed in the Members’ register, that I am a vice-president of the European Law Institute. Although I am not directly involved in its work, to which I will refer, I take a close interest in it.

It is important to appreciate that the development of international crimes has, over the centuries, reflected the desire of nations to ensure that international criminal law keeps pace with evolving standards. At present, the only international environment crime under the Rome Statute of the International Criminal Court is environmental damage as a war crime, under Article 8(2)(b)(iv). It has a high threshold, as it requires:

“Intentionally launching an attack in the knowledge that such attack will cause … widespread, long-term and severe damage to the natural environment which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated”.


That is a high standard and is set out in the context of war, but we have moved on. It is now necessary for us to examine what should be an international crime in the context of the environment outside war.

Progress has been made in a number of individual conventions directed at certain trades but, as was set out in the 2018 report of the UN Secretary-General, Gaps in International Environmental Law and Environment- related Instruments: Towards a Global Pact for the Environment, there is no single overarching framework. The law is piecemeal and reactive and, for the most part, conventions depend on national law for their enforcement.

In this context, the important steps of the last few years have seen developing impetus for the designation of a more general crime of ecocide triable before the international court. As the noble Baroness, Lady Bennett, mentioned, the late Polly Higgins spent much of the latter part of her life moving this forward. Again, as has been mentioned, last month, a panel of international experts put forward a definition of ecocide. While this requires detailed consideration and, in my view, further work, it is a further important step in getting to grips with establishing an international crime.

It seems plain to me that transnational concern for the environment and evolving standards have now reached the stage where the international community can begin to move towards designating ecocide as an international crime. I therefore ask the Minister, given Britain’s new global role, where it is important that we show leadership, what steps are we taking as a nation to keep up with this evolving international standard, in accordance with the long traditions of the development of international criminal law?

In parallel to this work, as it may take some years to move international criminal law forward—one has to be realistic about this—the UK ought to consider moving forward its own criminal law to establish the crime of ecocide, or other similar crimes, as set out in Amendment 293D. As has been mentioned, the European Law Institute is looking at a number of matters: first, the definition put forward by the panel of experts; but, more importantly in the domestic context, devising a model law. This would primarily be for the use of the European Union but, as the institute is Europe-wide, for other nations as well. It will provide a definition and workable set of principles to criminalise this activity and, importantly, civil remedies in tort or delict. I therefore welcome Amendment 293D in principle, although it is clear that more work needs to be done in this area.

Therefore, my second question to the Minister is: what are Her Majesty’s Government intending to do in this respect? Have the Law Commission and the Scottish Law Commission, which are the prime movers of legal thought in England, Wales and Scotland, been asked to consider this work and provide a crime of ecocide?

Environment Bill

Lord Thomas of Cwmgiedd Excerpts

Committee stage
Monday 12th July 2021 Lords Chamber

I say in conclusion to the Minister that I do not think the amendments impose an unreasonable burden on the Government, and I commend them to him.

[Lord Thomas of Cwmgiedd (CB) [V]]

It is a great pleasure to follow the noble Lord, Lord Blencathra. In the light of what he has said, it is unnecessary for me to say anything other than to warmly endorse his words in respect of Amendment 265A in respect of the financial services industry and the amendments in the name of the noble Lord, Lord Randall of Uxbridge, on the longer-term plans.

I shall concentrate on one aspect only, in view of the lateness of the hour: the methods on which control over the use of forest risk commodities can most effectively be framed for enforcement in the United Kingdom. Three methods are under consideration. They can be cumulative and probably should be, and should operate together. What is essential is to examine each and see whether one can stand on its own or whether all three would work better together.

I take the first, which is the proposal in the Bill to allow the use of forest risk commodities only if local laws have been complied with. This is unlikely to be effective and indeed, as the noble Baroness, Lady Meacher, explained, it could be counterproductive. The reason why it is likely to be ineffective is that most of the localities with which we are concerned have legal and legislative systems that do not protect from deforestation because of political and economic pressure. Even if protection is initially given, there are numerous instances of retrospective validation of deforestation in contravention of local law. Such retrospective validation would make the use legal under the local law and would therefore render this method of halting deforestation nugatory. Furthermore, proof that the commodity was produced in contravention of local law is likely to cause significant difficulty and uncertainty and considerable expense if the matter comes for enforcement in the UK. Thus, in my view, the first method is unlikely to be effective.

The second method, as set out in the amendment in the name of the noble Baroness, Lady Jones of Whitchurch, is to add a further requirement in respect of the locality: the informed consent of indigenous people and local communities. I would welcome this as a vital addition and safeguard, if the first method is to be chosen. However, although I have no doubt that NGOs and other organisations would give every assistance in establishing whether informed consent was given, I would anticipate that establishing the factual position in a UK court would be far from easy—the difficulties are obvious. However, if the first method is to be used as set out in the Bill, this would be an essential part of having effective enforcement.

The third method is that set out in the amendment in the name of the noble Baroness, Lady Meacher, which is to prohibit use if land has been deforested after the commencement of the schedule as further delineated in regulations made by the Secretary of State. In my view, this amendment would be wholly effective on its own and certainly buttress the other two methods. It would leave no room for dispute as to the status of the areas from which the commodity comes, as it is an objective standard not dependent on proof or either local law or the consent of the indigenous people or local communities.

If the third method were adopted, it would give great clarity, which is essential if this law is to operate as a deterrent to industries in the UK using forest risk commodities in breach of what everyone agrees ought to be prevented. I therefore warmly support the third of the methods—that is, the amendment in the name of the noble Baroness, Lady Meacher—but if that cannot be done, we must have the amendment in the name of the noble Baroness, Lady Jones of Whitchurch.

[Lord Harries of Pentregarth (CB) [V]]

My Lords, I wish to support Amendment 264ZA, in the name of the noble Baroness, Lady Jones of Whitchurch, and Amendment 264A, in the name of the noble Baroness, Lady Meacher. As we know, the rate of deforestation on our planet is a scandal and an increasing threat to both our climate and the extent of our biodiversity. In some parts of the world, it is also a threat to the indigenous population who live in the forests, a denial of their fundamental human rights. Their habitat, their lives and their livelihood are often endangered by deforestation.

Amendment 264ZA, in the name of the noble Baroness, Lady Jones, rightly seeks to ensure that if forest risk wood is imported, it has been felled only with the permission of the indigenous population. It is not enough just for local laws to be observed, which may be too permissive or open to manipulation by local interests; there must be safeguards for those most directly affected. Our laws cannot reach into those areas, but we can at least ensure that we do what is open to us to do in this country, which is to have appropriate checks in place for importers of forest risk material.

Amendment 264A, in the name of the noble Baroness, Lady Meacher, has a similar purpose: to do what we can in this country to prevent exploitive deforestation. It would ensure a total prohibition, except in relation to indigenous people, on importing forest risk products from agricultural land which should never have been cleared in the first place, as trees should still be standing. The noble Baroness put forward powerful arguments in favour of her amendment, strongly supported just now by the noble and learned Lord, Lord Thomas of Cwmgiedd, with his important phrase about retrospective validation. A forest which should never have been felled in the first place might get some kind of legal retrospective validation, but we need to ensure that that wood should still not be imported. For those reasons, I strongly support both those amendments.

Environment Bill

Lord Thomas of Cwmgiedd Excerpts

Committee stage
Wednesday 30th June 2021 Lords Chamber

[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.

[Lord Krebs (CB) [V]]

My Lords, it is a great please to follow my noble and learned friend Lord Thomas of Cwmgiedd. I have put my name to Amendments 105, 106, 107 and 108, together with my noble friend Lord Anderson of Ipswich, my noble and learned friend Lord Thomas of Cwmgiedd and the noble Lord, Lord Duncan of Springbank. As a mere lay man on legal matters, I have little to add to the points made so beautifully by my noble friend and my noble and learned friend. However, it would be hard to argue against the view that the OEP, if it is to be an effective enforcement body, needs to be able to wield a big stick, even if the stick is rarely used. As it stands, the Bill gives the OEP a stick more akin to a matchstick than a knobkerrie, cudgel or shillelagh.

I am very grateful to the members of the Defra Bill team for having spent two sessions with my noble friend Lord Anderson and me trying to explain why Clause 37(8) biases the scales of justice against protecting the environment and in favour of commercial interests that might harm it. Three arguments were put forward. First, environmental review will take some time to reach the court stage as it passes through the two earlier stages of an information notice and a decision notice. Therefore, a third party may have already committed a great deal of resource to a project before it comes to court and it would be then unfair to stop the project in its tracks. Secondly, it was said that the OEP has wider powers than those covered by the European Commission and court and therefore needs to have its teeth blunted. Thirdly, in some cases, for instance planning approvals, giving environmental protection too much weight might cut across other government priorities.

I do not find these arguments at all persuasive. For instance, the argument that the environmental review process is so slow that a third party could be heavily committed begs the question of whether the design of the whole process needs to be reconsidered, as Amendment 108 proposes, rather than using Clause 37(8) as a sticking plaster to rectify the problem. As it stands, it is a bit like a manufacturer making a chair with legs that are too long and then selling it with a requirement that the customer cuts the legs down before use.

Defra officials have also produced a very helpful note summarising their arguments for this part of the Bill, as the noble Lord, Lord Anderson, referred to a few minutes ago. The note makes it clear that one of the Government’s concerns, perhaps even a major concern, is that the OEP might get in the way of the planning system. My noble friend Lady Boycott referred in earlier debates to instances where housing developments could cause serious harm to valuable habitats. Perhaps a powerful OEP would be able to discourage or stop these developments—but if it did, would that be a bad thing? It certainly would not be for the species that depend on those habitats for their survival.

Environment Bill

Lord Thomas of Cwmgiedd Excerpts

Committee stage
Wednesday 23rd June 2021 Lords Chamber

[The Earl of Caithness (Con)]

My Lords, I assure the noble Baroness, Lady Hayman of Ullock, that it has been extremely useful that she has spoken to her amendment before we all comment on it. I congratulate her on the way she did it and support a lot of what she said.

I thank my noble friend the Minister for sparing the time to have a meeting with me before we started Committee. At that meeting, I said to him that one of my main focuses was going to be how this works in practice on the ground—how it will be implemented in reality, rather than in theory. That is what I want to start to explore with this amendment, in support of my noble friend Lord Lucas. He rightly asked why the targets have been set and how.

We all want better biodiversity—it is on that area that I shall focus in the short time for which I shall speak—but we must have a sensible and practical target for it. If my noble friend issues a target that he wants lapwing and curlew numbers to be increased by 50%, we must look at some hard evidence and facts. Here, I call in aid the work of the Game & Wildlife Conservation Trust. It has been researching this area for more than 20 years, combining a productive farm at Loddington in Leicestershire with benefits for wildlife. I urge my noble friend the Minister to visit that farm as soon as practicable, and certainly before Report, because he will be fascinated by the research that the trust has done.

The trust has done research into lapwing. It did a pilot study with Peak District farmers. It was backed up by Natural England. The farmers did all the right things: the grass was the right length, the vegetation was absolutely right. They got full marks, they got a lot of funding, but there was absolutely no increase in lapwing; in fact, there was a decrease. That was because other factors, in particular, predation by animals, had not been taken into account. An awful lot of money has been wasted on projects similar to this.

I back that up with the curlew project in Shropshire that it was involved with. For two years, it monitored and looked after sites, but no chicks survived. Mostly, that was due to egg predation by badgers and foxes, which has caused real problems; indeed, it got to the stage where nests were electric-fenced off to protect them. Three nests hatched but, once the chicks had got out from under the electric fence, there was no stopping the predation. Therefore, I thoroughly support the aims of my noble friend Lord Lucas’s proposal and ask my noble friend the Minister: how will these targets work in practice regarding biodiversity? Given the examples I have just mentioned—and I have a lot more to come out during later amendments—how will this work on the ground for the benefit of wildlife?

[Lord Thomas of Cwmgiedd (CB) [V]]

My Lords, I wish briefly to speak on the two principal targets of these amendments—first about reasons and secondly the targets themselves. I warmly support Amendment 15. First, experience throughout my life has shown that if you are required to give reasons, you make better decisions. I do not believe that this will be burdensome because the civil servants advising the Minister will have to set out why particular targets are chosen. Secondly, I support the view that evidence should be provided, because that enables the cogency of the reasons to be examined and their transparency becomes obvious to all. Thirdly, setting out reasons and the evidence will provide a firm basis for certainty about the targets themselves. This is a small but very important amendment and I do not believe that it will add to the burdens of our very hard-pressed Civil Service because this is the kind of thing that it does internally. Why not follow transparency and make it public?

As regards targets, the noble Baroness, Lady Bennett of Manor Castle, may well be right in her view in Amendment 18 that there should be a restriction on the length of the long-term target because there does not appear to be one in the Bill at the moment. That is why interim targets are so important. As is accepted, it is the interim target that the current Government are likely to concentrate on, not the more distant target—if it is more distant than 15 or 20 years away, no one will concentrate on it at all. As the noble Baroness, Lady Hayman of Ullock, has so eloquently explained, there is so much evidence that targets are missed. In dealing with targets in ordinary day-to-day life, it is accepted that unless there is something behind a target to give teeth to it and impose a clear duty, then it can easily be ignored.

As the noble Baroness, Lady Hayman, has explained, the Government say that the triple lock will work. I do not accept that that is tough enough. Why not acknowledge a duty? The Government accept that there is a duty in respect of long-term targets, why not therefore a duty in respect of the interim targets? We all know that if you are under a duty—both legally and morally—you will seek to discharge that duty. It will be interesting to hear the Minister’s explanation as to why the Government simply will not accept a duty.

--- Later in debate ---

[The Deputy Chairman of Committees (Lord Russell of Liverpool) (CB)]

The noble Baroness, Lady Boycott, has also withdrawn from this group, so I call the noble and learned Lord, Lord Thomas of Cwmgiedd.

[Lord Thomas of Cwmgiedd (CB) [V]]

My Lords, I will speak briefly, as the points have largely been made. In my view, it is essential that Clause 7 is strengthened to give it greater effectiveness. The only requirement currently set out is that the plan

“must set out the steps Her Majesty’s Government intends to take to improve the natural environment in the period to which the plan relates.”

There can be no doubt that this is far too vague. The proposals in the various amendments tie the plans to the achievement of targets, and the precise language of these amendments is important. My view is that the use of the words “enable” or “ensure” in relation to the meeting or achievement of targets is the best approach, as that would require the plans to set out concrete and achievable steps to enable the target to be met. That I why I think that the language used in particular in the amendment proposed by the noble Earl, Lord Lindsay, contains that specificity.

That is important because specific and precise language will set out what the duty of the Government is. The public must be able to see exactly what steps are to be taken to meet the targets, and then judge for themselves the commitment and realism with which the Government set about the significant changes that will be required. It would be unrealistic to take any position that there will be powerful interests that are adversely affected by such targets, and who—for reasons that may be understandable, but are wrong—would seek to delay the achievement of those targets. The easiest way to defeat such persons who seek to delay is by transparency and specificity, which is generally more effective than court enforcements, to which we shall return later in the Bill. Requiring the Government to set out the steps is absolutely essential; the vagueness contained in the current Bill is the enemy of achievement.

[Baroness Bakewell of Hardington Mandeville (LD)]

My Lords, Amendments 52, 53 and 55 all make reference to the environmental improvement plans, which are key to the delivery of the ethos and thrust of the Environment Bill.

The noble Baroness, Lady Hayman of Ullock, has very eloquently set out the case for strengthening the environmental improvement plans—the EIPs—supported by my noble friend Lady Parminter and the noble Lord, Lord Krebs. In order for the EIPs to be effective, the minimum requirements should be up front, not an afterthought. Ambitious, realistic targets are vital, but there must be strategies in place to provide a route map for delivery. The one cannot be successful without the other.

All three amendments are interlinked and support each other. The noble Earl, Lord Lindsay, made the case for the EIPs to include the policies and actions the Government intend to support to enable the long-term environmental targets to be met. So serious is the crisis at our doors that both short-term immediate remedial targets and actions will need to be taken, coupled with and supported by the longer-term aims, objectives and targets to ensure that the country does not rest on its laurels but halts our biodiversity decline and progresses swiftly to tackle climate change on a permanent basis.

Progress is not likely to be overnight, but that is no excuse for not taking immediate and long-term action to rectify the crisis we are facing. This will have an economic impact, as the noble Lord, Lord Vaux of Harrowden, raised on an earlier amendment, but ensuring sufficient investment in strategies and plans to allow the EIPs to be successful is likely to be a measure on which the public will judge the Government. Failure is not an option. I look forward to the Minister’s reassurance that he can accept these three vital amendments.