Environment Test From Patch Testing (First sitting)

Alan Whitehead Excerpts

Monday 16th August 2021 Public Bill Committees

[The Chair]

[Dr Alan Whitehead (Southampton, Test) (Lab)]

[Rebecca Pow]

[Dr Whitehead]

[Rebecca Pow]

[Dr Whitehead]

I did not intend to go down this particular route, so I will not go any further down it. I just say, in closing, that we forcefully put the case for an environmental objective clause at the beginning of the Bill Committee, so it is appropriate that we make our case once again at the end of it. On that basis, we seek to divide the Committee.

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[The Chair]

[Dr Whitehead]

[Ruth Jones]

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[Rebecca Pow]

[Dr Whitehead]

[Deidre Brock]

Environment Bill (Twenty Second sitting)

Alan Whitehead Excerpts

Committee stage & Committee Debate: 22nd sitting: House of Commons
Thursday 26th November 2020 Public Bill Committees

[The Chair]

Before we proceed, may I advise the Committee that we are able to sit here until 5 pm on Tuesday, but I personally feel a strong urge to get back to Wiltshire as soon as I possibly can, and cracking on would therefore be a good plan.

New Clause 28

Environmental objective and commitments

‘(1) In interpreting and applying this Act, any party with duties, responsibilities, obligations or discretions under or relating to it must comply with—

(a) the environmental objective in subsection (2); and

(b) the commitments in subsection (3).

(2) The environmental objective is to achieve and maintain—

(a) a healthy, resilient and biodiverse natural environment;

(b) an environment that supports human health and well-being for everyone; and

(c) sustainable use of resources.

(3) The commitments are—

(a) all commitments given by Her Majesty’s Government in the United Nations Leaders’ Pledge for Nature of 28 September 2020, including, but not limited to, the urgent actions committed to be taken by it over the period of ten years from the date of that pledge;

(b) any enhanced commitments given by Her Majesty’s Government pursuant to that pledge, any other pledge, and any international agreement; and

(c) all relevant domestic legislation, including, but not limited to, the Climate Change Act 2008, as amended from time to time.

(4) Without prejudice to the generality of the requirement in subsection (1), that requirement applies to—

(a) the Secretary of State in setting, amending and ensuring compliance with the environmental targets; preparing, amending and implementing environmental improvement plans; and performing all their obligations and exercising all their discretions under this Act;

(b) the Office for Environmental Protection and the Upper Tribunal in performing their respective obligations and exercising any applicable discretions; and

(c) all other persons and bodies with obligations and discretions under, or in connection with, the subject matter of this Act.’ .—(Dr Whitehead.)

This new clause ties obligations and discretions of the various parties under this Act (subsections 2 and 3), other acts and international agreements together. It seeks to incorporate commitments as they are made in the future. It requires all relevant public bodies to apply the commitments as they are agreed to

Brought up, and read the First time.

[Dr Alan Whitehead (Southampton, Test) (Lab)]

I beg to move, That the clause be read a Second time.

Hon. Members with an elephantine memory will recall that at the beginning of this Committee’s deliberations—I have here the exact date and time a clause is debated; it is written on a piece of parchment, it is so old—we tabled new clause 1, which related to the environmental objective. At that time, we said that one reason for tabling this new clause was that the Bill had no cohesion in terms of its overall objectives. While it has many good things in it, those are essentially disparate elements that do not pull themselves together in terms of what the Bill is or should be about overall. We tabled that brief clause to try to pull the Bill together. The clause was not agreed to on that occasion, but as the Bill Committee has progressed and as we have moved into our latter stages in the autumn, nothing has made the Bill more cohesive.

New clause 28 would do exactly that, with environmental objectives and commitments. It would place in the Bill a very clear environmental objective to

“achieve and maintain…a healthy, resilient and biodiverse natural environment…an environment that supports human health and well-being for everyone; and…sustainable use of resources.

I think that would absolutely pull together what we all think we are doing in this Bill Committee. If passed, imagine the new clause placed at the head of the Bill, where it would underline those objectives and ensure that everything in the Bill was read within them.

The new clause goes further still by ensuring that the Bill takes account of

“all commitments given by Her Majesty’s Government in the United Nations Leaders’ Pledge for Nature of 28 September 2020”,

which reflects those environmental objectives. The legislation would include the international commitments that we as a country have made to our environmental objectives, underlining just how important the Bill may be for those objectives.

We are offering a much better and improved environmental objective clause that takes account of all the various issues raised in Committee, and we think it would be a great adornment to the Bill. I know that in this place we are all looking for “the one” when it comes to clauses, and I was grievously disappointed that the last clause did not make it into the Bill, because there was absolutely no reason at all why it should not have been adopted. I have a similar feeling about new clause 28. I hope that the Committee will unanimously agree that we need an environmental objective in the Bill. This clause fits the bill admirably and should be supported.

[Rebecca Pow]

The shadow Minister said that there is no cohesion to what the Bill is about. He spoke about people with elephantine memories, but surely he has not been listening? Throughout Committee stage, we have talked about what the Bill is about. I thank him for his sentiments, but I honestly think that he has missed the point somewhere along the line.

I reassure the Committee that we have designed each governance mechanism in part 1 of the Bill with guiding objectives. They will ensure that targets, environmental improvement plans, the environmental principles, which are included, and the Office for Environmental Protection work in harmony to protect and enhance our natural environment. That has all been devised as one framework. As is set out on the face of the Bill, the objective of the targets and environmental improvement plans is to deliver significant improvement and to provide certainty on the direction of travel. The first EIP is the 25-year environment plan, which the Opposition have waved at us many times.

The policy statement on the environment principles will be required to contribute to the improvement of environmental protection and sustainable development. Ministers of the Crown must have regard to that statement when making policy. Those aims will therefore be integral to policy making across Government. Furthermore, clause 22 sets a principal objective for the OEP of contributing to environmental protection and the improvement of the natural environmental in exercising its functions, so if the OEP does not think that enough is being done towards that objective, it can say why, give some steers and advice, and things will have to change. Those measures are all closely aligned and will work together to deliver the environmental objectives outlined in new clause 28 on the improvement and protection of the natural environment, and the sustainable use of resources—that is all very much a part of the measures.

The new clause would include commitments made under the voluntary leaders’ pledge for nature. I am very glad the hon. Gentleman mentioned that, because it was a big moment when our Prime Minister said that we support that pledge at the recent UN biodiversity summit at the UN General Assembly in September. The UK is now working with other key signatories to drive forward the 10 commitments in the pledge, including through our hosting of COP26 and our involvement in the convention on biological diversity negotiations in 2021. I reiterate that the leaders’ pledge for nature is voluntary and, as such, was drafted between the participating states in deliberately non-treaty language, partly to serve as a public document that could be read by as many constituents as possible. The UK is now working with other key signatory countries to drive forward those commitments.

Many of the areas reflected in the leaders’ pledge are already included in the Bill, which introduces a powerful package of new policies and tools to support nature’s recovery. I know that the shadow Minister wants that just as much as I do, but I assure him that the measures in the Bill already cover that, not least on biodiversity net gain, local nature recovery strategies, conservation covenants, which he did welcome, and a strengthened biodiversity duty on public authorities. All those things will work together to drive from the roots upwards to get overall improvement. As a result, we will be creating or restoring rich habitats to enable wildlife to recover and thrive in future years. Measures on resource efficiency will help to keep products in use for longer, encouraging better repair and recycling of materials by influencing product design at the very beginning.

Clause 2 places a clear, legally binding requirement on the Government to set an air quality target that goes beyond EU requirements and delivers significant health benefits for citizens. The Bill also supports recent legislation on reaching net zero emissions by 2050 and our wider efforts to build resilience to a changing climate. It will do so by improving air and water quality, supporting resource efficiency, and restoring habitats to allow plants and wildlife to thrive, along with other measures in that part of the Bill.

I hope that I have made it clear that I honestly do not believe that new clause 28 is needed. I ask the hon. Gentleman to withdraw it.

[Dr Whitehead]

Although the Minister has provided a good concordance on where to look in the Bill for things that could conceivably pull it together, nothing in the Bill actually does that. Saying that if one looks at the Bill carefully, one can see things that move it in the right direction, is not really a defence.

[Rebecca Pow]

The shadow Minister’s new clause refers to a “healthy, resilient” environment—that is such a loose term. What exactly does he mean by that and what does it mean legally? Does he not agree that, were that wording to be used, it would create huge legal risk and could jeopardise the delivery of key policies in the Bill?

[Dr Whitehead]

I do not think a healthy and resilient environment can be interpreted in any other way than an environment that needs to be as healthy as possible for human development and progress, and one that is able to regenerate itself and keep as close as possible to the most beneficial way of working that it had prior to human intervention. I do not think there is a problem about the definition. Indeed, having it defined in that brief, particular way gives a very good remit for making sure that those are the ways in which that environment can be defined.

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[The Chair]

Do the Opposition wish to move new clause 33?

[Dr Whitehead]

Mr Gray, we consider that the aims of new clause 33 have already been aired in new clause 29—we know the result of that—so we do not wish to move it.

New Clause 34

Reducing Water Demand

“(1) The Secretary of State shall within 12 months of the commencement of this Act amend the Building Regulations 2010 Part G to—

(a) require all fittings to meet specified water efficiency requirements; and

(b) introduce mandatory minimum standards on water efficiency.

(2) Standards as introduced under subsection (1)(b) shall be reviewed every 5 years to assess their contribution to meeting government objectives for reducing water demand.”—(Ruth Jones.)

Brought up, and read the First time.

[Ruth Jones]

I beg to move, That the clause be read a Second time.

New clause 34 was tabled in my name and in those of my hon. Friends the Members for Southampton, Test, for Cambridge, for Putney, and for Sheffield, Brightside and Hillsborough. We are seeking to ensure that we build on the Minister’s words and give real effect to the long-term sustainable change that the climate emergency demands.

The new clause is clear in tone and intent. Although we are an island, safe and secure water supplies have eluded us in the past, and with a rising population and increased demand, the existing infrastructure, on which we have relied for many years, needs to be supported. It needs the pressure taken off, which is what the new clause would do.

In preparing to speak to new clause 34, I read Ofwat’s recent report exploring the decisions that can be taken, the options available, and the action required to reduce demand for water in coming years. The report notes that

“on average we currently use about 140 litres of water per person per day in England and Wales, up from 85 litres per person in the 1960s.”

The report’s findings also reveal that

“tackling household leaks and using innovative technologies could help to decrease water use by two thirds—or over one bath per person per day—over the next 50 years.”

The new clause therefore goes some way to giving parliamentary and legal effect to addressing many concerns related to tackling water waste up and down England.

The preservation of our environment is ultimately in our hands and those of the people we represent: working people in all parts of the United Kingdom. We need to ensure that the law in shaped in such a way that we motivate and encourage people to change their behaviour and to adapt to the changing and evolving demands of the climate emergency. The Bill will go some way towards ensuring that we reach out and give the people of England the necessary direction, whether that is through the introduction of mandatory minimum standards subject to a five-yearly review or a set of fittings requirements. If we do not act now—there is no reason for us not to seize this initiative—we cannot expect people in the country to act.

This is a once-in-a-generation Bill, as the Minister said on Second Reading and previously in Committee. Let us ensure that those words mean something. Let us deliver a Bill that is fit for purpose, and that will stand the test of time and the scrutiny of future generations. With the future of our planet in mind, I move the new clause.

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[Rebecca Pow]

On a point of order, Mr Gray, I wanted to do a quick round-up. The hon. Member for Putney mentioned that this Committee has gone on for 261 days. We started back in March, then the Committee was adjourned and all the rest, but the whole process of this Bill has been even longer than that. We have done two Second Readings, so it has been a long time in the process and even longer than that behind the scenes.

I give my heartfelt thanks to absolutely everyone, starting with the Chair. Thank you, Mr Gray, for keeping us in great order and managing to have a grandchild during the process. Thank you to the Clerks, particularly the new Clerk, who really got the hang of the role very fast. I must thank the entire Committee, because it is a long old haul, and we are all obviously handpicked. I must also thank all the shadow Ministers for the spirit in which we have conducted this—the hon. Members for Southampton, Test, for Cambridge South and for Newport West—as well as the hon. Member for Putney and indeed, the Whip. We all have the shared desire to improve the environment, and I do not think that is ever going to change. We will all be driving the endeavour forward, and it must be said that it is good to have a bit of probing.

I want to thank the members of my private office, who have been phenomenal at keeping me up to speed, which is not always easy. I thank the Bill team: Amira, who is sitting in the room, as well as Brendan and Lucy, and four others in the main team. I thank them all, because they do a phenomenal job. Hon. Members do not see it, but I do. We have about 100 policy officials behind them, so it is a massive effort. I thank them all from the bottom of my heart, because their work has been phenomenal. Some of it is pretty detailed and tricky, and I ask a lot of questions about legislative things, because I do not have a legal background. I thank them for all their work. This is not over yet; onwards and upwards to Report.

[Dr Whitehead]

Further to that point of order, Mr Gray. At the risk of straining the point of order, I would like to add my thanks at the conclusion of our Bill Committee proceedings. They have been immensely long, as my hon. Friend the Member for Putney has enumerated, with 230 amendments and 35 new clauses. I thank you, Mr Gray, for your purposeful, elegant and impartial chairing of our proceedings, and I hope you will pass on our thanks to Sir George for his part in proceedings. I thank the Minister for her immense optimism and terrific jackets, and for the courteous and good-hearted way she has conducted proceedings throughout. I appreciate that undertaking a Bill of this length is a tremendous burden, and I appreciate her fortitude and perseverance in carrying through that job.

I want to single out the Committee Clerks for thanks. They have been a wonderful source of assistance, help and wise guidance, and they have enabled us to do our part as well as we have been able to. Finally, I thank other Opposition Members. I think it will be agreed that they are not a team of journeymen and women; they are a team of Galácticos in their own right, and I thank them for their contributions to scrutinising this Bill so well.

We are, naturally, very disappointed that we have not been able to strengthen the Bill as we had hoped to do, but we will continue with that task on Report and in the other place. We hope that our doing so will help to make it a Bill that we can all be proud of, when it comes to strengthening our country’s natural environment resources and providing the protections that must flow from that; we all agree that we want the Bill to do those things. I welcome the end of this Committee, for obvious reasons, but we can all be proud of our contribution to getting the Bill to this point, and I thank everybody on the Committee for their part in proceedings.

[Deidre Brock]

Further to that point of order, Mr Gray. On behalf of my hon. Friend the Member for Gordon and myself, and with a slightly nervous eye on the clock, I thank all Members of the Committee for their good-humoured and thorough approach to the Bill. I have certainly appreciated that. I thank you, Mr Gray, and Sir George for your chairship. I thank the Clerks for their assistance, which has been much appreciated, and I thank the various representatives from Hansard who have sat through lengthy hours of this Committee. Although much of what we have debated has not covered Scotland, it has been instructive to hear from Members from all parts of the Committee about the approaches that are being taken. I wish England very well in all its efforts to create a much healthier and more vibrant, biodiverse and attractive environment for all its citizens.

Environment Bill (Twenty First sitting)

Alan Whitehead Excerpts

Committee stage & Committee Debate: 21st sitting: House of Commons
Tuesday 24th November 2020 Public Bill Committees

[Fleur Anderson]

I thank the Minister for looking into the issue and for some assurances that targets could be included in future, and that we will be seeking alternatives. I note the concerns and considerations that we all want the same thing, which is stronger animal welfare. I am disappointed that we will not agree on this matter this afternoon, but I will not press it to a Division. I beg to ask leave to withdraw the clause.

Clause, by leave, withdrawn.

New Clause 10

OEP: Penalty notices

‘(1) If the OEP is satisfied that a public authority has failed to comply with a decision notice, the OEP may, by written notice (a “penalty notice”) require the public authority to pay to the OEP an amount in sterling specified in the notice.

(2) When deciding whether to give a penalty notice to a public authority and determining the amount of the penalty, the OEP must have regard to the matters listed in subsection (3).

(3) Those matters are—

(a) the nature, gravity and duration of the failure;

(b) the intentional or negligent character of the failure;

(c) any relevant previous failures by the public authority;

(d) the degree of co-operation with the Commissioner, in order to remedy the failure and mitigate the possible adverse effects of the failure;

(e) the manner in which the infringement became known to the OEP, including whether, and if so to what extent, the public authority notified the OEP of the failure;

(f) the extent to which the public authority has complied with previous enforcement notices or penalty notices;

(g) whether the penalty would be effective, proportionate and dissuasive.

(4) Once collected, penalties must be distributed to the NHS and local authorities to be used for pollution reduction measures.

(5) The Secretary of State must, by regulations, set the minimum and maximum amount of penalty.

(6) Regulations under this section are subject to the affirmative procedure.”—(Dr Whitehead.)

This new clause would allow the OEP to impose fines.

Brought up, and read the First time.

[Dr Alan Whitehead (Southampton, Test) (Lab)]

I beg to move, That the clause be read a Second time. This proposed new clause was originally put forward in the names of my hon. Friends the Member for Swansea West (Geraint Davies) and for Leeds North West (Alex Sobel), who no longer sit on the Committee. With our names added, we certainly support the sentiment.

The proposed new clause contains a simple proposition relating to the Office for Environmental Protection and its functions. Hon. Members will recall that we have had substantial discussions about the extent to which the OEP has powers to make its functions work well. It is a question of giving it not just general authority but enforcement powers, notices and so on, which we have debated. As the Bill stands, although the OEP would have a number of powers concerning notices and the ability to bring court proceedings, it would not have the power to levy fines.

That argument is sometimes raised where a no-fine outcome is concerned, when the question arises regarding the bodies on which the OEP would levy fines. That would, by and large, be public authorities. The argument then runs about what it would mean to levy a fine on public authorities. I remind hon. Members that that was not the case before we took powers over from the EU, in running our own environmental importance. Nor is it something that other agencies do not have as shots in their locker.

The clean air regime, for example, allowed the EU Commission the power to levy fines on infracting countries. In the case of clean air regulations, there was a suggestion that the fines that the EU authorities had the power to levy could be applied to infracting local authorities that were not adhering to clean air regulations. Indeed, there was quite a to-ing and fro-ing between the Department for Environment, Food and Rural Affairs and local authorities, because it was suggested that authorities that had been identified as infracting, and therefore needed to draw up clean air plans, would bear the brunt of the fines, rather than the UK Government. The UK Government were the public authority that was infracting, but they had passed on their infraction responsibilities to other public authorities, so those public authorities would be fined. That was a real issue with regards to clean air just a little while ago, but it has not been passed on to the Office for Environmental Protection, which would be the agency in that instance with UK powers.

Similarly, Ofgem has considerable powers to fine companies that do not undertake proper management of their customer bills or their responsibilities for energy supply. Indeed, a considerable number of fines have been levied, running to millions of pounds, on energy companies. Ofgem has that clear and workable power to levy fines, but the OEP does not.

We are saying that the OEP should have the power to fine. Indeed, the new clause would give it that power. The other part of the problem is what the agency would do with the fines once they have been collected—is it not just a circular process? The new clause states that, once collected, penalties must be distributed to the NHS and local authorities to be used for pollution reduction measures. The fines would be recycled, but in a positive way for environmental management and improvement.

Having that power to fine, and being able to publicly state that authorities had been fined, are potentially strong weapons in the OEP’s locker, not necessarily because the fines would be punitive in their own right, but because they would be a mark against that public authority and because, through the transfer of the fine payments, the sins of that public authority would be effectively transferred into positive action on environmental improvement in other areas.

We think the new clause is a sensible, straightforward measure that would generally improve the efficacy of the OEP. The fact that nothing like it was thought about emphasises the general theme that we have been talking about in Committee of the power, independence and force of the OEP being downgraded through a number of Government amendments that have been made as we have gone through the Bill. This would be one back for the OEP, so I hope the Committee will view it in a favourable light.

[Rebecca Pow]

I thank the hon. Member for the intention behind tabling the new clause. The Government completely agree that effective enforcement of public authorities’ compliance with environmental law is vital. That is why we are establishing the OEP to hold public authorities to account, as we have clearly talked about many times in Committee. However, in our domestic legal system it is unnecessary to make specific provisions for fines to achieve that.

Fines play an important role in the EU infraction process, as the hon. Member points out, but only because the Court of Justice of the European Union is unable to compel member states to take a specific course of action through a court order. It is the only penalty that it has in its armoury. It is therefore reliant on the significantly less effective approach of penalising the member state until they take some form of remedial action, although the UK has never been fined for an environmental infraction.

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[Rebecca Pow]

I do not think the OEP is going to have any problem at all operating its clout. We will have a new chairman and a supporting board, and that will be their raison d’être. They do not need fines. In fact, I wrote an exclamation mark as I thought it was a bit of a joke when I saw that the shadow Minister had suggested that the OEP should become a funding body. That would be a significant expansion in its scope, and not consistent with its role as a watchdog to hold Government to account.

In summary, the OEP’s enforcement framework has been designed to resolve cases as robustly, quickly and effectively as possible. The powers already available to the courts to grant and enforce remedies make a system of fines unnecessary. I therefore ask the hon. Member to withdraw the new clause.

[Dr Whitehead]

I thank the Minister for that response. There are arguable cases. What we want to see as an emphasis on enforcement is a matter of opinion as to what is most effective, rather than a fundamental discussion about having a power or not. I remind the Minister that we had a debate about the fact that OEP appears to be pushed further away from its ability to go through the courts by the debate on who should decide whether something was a serious breach, and the role of the OEP and the Minister in that. At the very least, this idea, that the OEP could introduce penalties in its own right, would be a step to rectify that particular problem.

I take what the Minister has to say about the extent to which there are, at least in principle, reasonable methods of enforcement as far as the OEP is concerned. It is not a wholly unreasonable point to make that that should not necessarily include fines. However, this is a route worth considering, and it may be that, as the OEP develops and we see how it manages to enforce things, the idea of fines might be revisited. I do not intend to press the clause to a vote this afternoon, so I beg to ask leave to withdraw the clause.

Clause, by leave, withdrawn.

New Clause 12

Duty to follow recommendations

(1) A “public authority” must follow the course of action set out in a recommendation made by the OEP in a report issued under sections 25 or 26 unless the public authority has determined that there are reasons of public interest demonstrating that it is not necessary for it to do so in order to comply with the law.

(2) If the authority does not follow a recommendation, it must publish a report setting out the reasons for not doing so and set out what alternative course of action it proposes to take.

(3) In this section public authority carries the same definition as in section 28(3). —(Dr Whitehead.)

This new clause requires a public authority to whom the OEP has issued a recommendation to normally follow that recommendation.

Brought up, and read the First time.

[Dr Whitehead]

I beg to move, That the clause be read a Second time.

Interestingly, this new clause comes at the same point from a slightly different direction. On the basis of what the Minister had to say just a moment ago, she might consider how this clause might work in enhancing the ability of the OEP to secure importance in an appropriate and robust manner.

The new clause—and I shall not dwell on it great length—requires a public authority to whom the OEP has issued a recommendation to normally follow that recommendation. That is an onus in law, on the public authority, to follow the course of action set out in the recommendation made by the OEP. There can, of course, be exceptions to that, and there may be circumstances in which an authority considers it does not have to follow a recommendation. However, if that is the case, the new clause provides that it should publish a report setting out the reasons for not doing so and, positively, what alternative course of action it proposes to take.

The new clause would considerably enhance the power of the recommendations of the OEP as the default position would be that an authority should follow its recommendation; it could not get away with saying “Well, we don’t particularly want to do that. There are reasons for this; trust us—don’t worry. We don’t have to do it”. Instead, it would have to go public on why it could not do it, and it would have to publicly say what alternative course of action it would take, rather than taking no action.

This does not go down the fine route, but it does go down the enforcement route in a different way—a potentially equally important way—and I would be interested to hear the Minister’s thoughts on this particular way of further enhancing the enforcement credibility and robustness of the OEP.

[Richard Graham]

I am slightly concerned about the trend of the hon. Gentleman’s line of thinking, which is very authoritarian and along the lines of “Let’s have the courts say as a default that the police are normally always right; that the county council are normally always right on issues of child welfare and so on.” That is not the way that this country operates; we believe fundamentally in freedom and an objective decision by the courts on the rights and wrongs of a particular case. Surely there is no reason why the OEP should be some sort of magical exception to that overriding rule.

[Dr Whitehead]

If the hon. Member for Gloucester were pursuing a principled position on that, he would have to undo the whole structure of regulation in this country to ensure the freedoms and the way of life that he suggests that we should follow, because that is what regulators by and large do—they quite often produce regulatory decisions and regulatory outcomes that apply to those who are being regulated. I gave the hon. Gentleman the example of Ofgem, which levies fines on bodies that appear to transgress what Ofgem has decided as a regulator. That is not a court action but relates to how the regulator works and how those who are supervised by that regulator are expected to behave. There is a direct relationship between those two, and that is the case with a range of other regulators in all sorts of other areas. For example, the hon. Gentleman will be aware of Ofcom’s regulatory activities on a number occasions, and those of Ofwat.

I am not suggesting an exceptionally authoritarian proposal that comes out of thin air in a desire to regulate people beyond what they can bear. It is based on the relationship between the regulator and the regulated and their respective actions. Normally, those who are regulated should do what the regulator suggests should happen. To me, that is not akin to the Stasi going in to everyone’s life and regulating their private thoughts out of existence. What is proposed is a reasonably standard regulatory process, as carried out on a agreed basis in this country.

[Daniel Zeichner (Cambridge) (Lab)]

As ever, my hon. Friend is developing an interesting argument. I suspect that in some ways it goes back to where our regulatory frameworks first emerged. He and I are probably of an age to remember those discussions, which originally arose around some of the privatisations of public authorities. A regulatory framework grew up and it was initially intended that it would melt away because the market would weave its magic. Of course it quickly became apparent that we did need regulatory authorities. Does he agree that, over the past 20 to 30 years, we have had an emerging regulatory structure that is quite different from how it was originally envisaged?

[The Chair]

Dr Whitehead, strictly on this new clause.

[Dr Whitehead]

Indeed, Mr Gray; I will not be too far tempted on to the history of regulation and privatised industries and how that has worked out, other than to say that the checks and balances of the regulator are an important part of the process. What the new clause proposes does not depart from that practice, and I really do not agree with the suggestion that it is somehow following an authoritarian course.

I have been tempted to make a lengthier speech on the new clause than I intended by the interventions from the hon. Member for Gloucester, so I will not say any more at this stage, but I hope that the Minister will react favourably to the new clause.

[Rebecca Pow]

I thank the hon. Member for Southampton, Test for tabling the new clause because it allows me to provide some detail on the OEP’s scrutiny function as well as its interactions with Government and public bodies.

The new clause refers to recommendations made under clauses 25 and 26, which cover the OEP’s scrutiny of the Government’s environmental improvement plans and targets, as well as the implementation of environmental law. Many of the OEP’s recommendations, if implemented, are likely to require changes to law and policy, and those changes need to be carefully assessed alongside many other considerations. The responsibility for making changes to policy as well as introducing changes to legislation lies firmly with the elected Government, not an independent body. That was highlighted in the interventions by my hon. Friend the Member for Gloucester.

I also want to use this opportunity to explain how the OEP will interact with Government and public authorities with regard to its scrutiny function. In terms of the OEP’s report issued under clause 25, it will be addressed to the Government, as the Government are ultimately responsible for delivery of the environmental improvement plan and targets. Clearly, public authorities will help Government meet their objective of improving the natural environment, but, when the OEP makes recommendations as to how progress could be improved, Government are best placed to determine how, and by whom, those recommendations should be implemented. That is particularly important because it is the Government, obviously, who have the statutory duty to respond to the OEP’s recommendations, and are therefore held accountable. The Government must respond to the OEP’s reports; they must publish the reports and lay their responses before Parliament. That means that the Government will be held to account for their actions by the OEP, Parliament and the public.

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[Rebecca Pow]

I will not go into a huge amount of detail in my answer, as it was all covered in the early stages, but I could send the hon. Lady a page on how and why the OEP will remain independent. It will be an utterly independent body, and the Secretary of State has to be mindful of the independence of the OEP; that is a crucial part of some of the detail written into the Bill, and, if she wants to be referred to those sections, I am sure that we could clarify those with her.

Clause 26 enables the OEP to assess how environmental law is implemented; it is not simply about compliance with—or deviation from—the law, but will be more about whether the law is effective and delivering its intention. The OEP will seek information from public authorities to undertake this duty but, again, its findings will be addressed to Government, and only Government are required to respond.

This will work as one big machine, and local authorities will clearly play an important part; that is not to say that public authorities cannot implement any of the OEP’s recommendations which are applicable to them, if appropriate. However, this is very different from the suggestion that public authorities must comply with the OEP’s recommendations unless they publish a report justifying an alternative approach.

For those reasons, I ask the hon. Member for Southampton, Test to withdraw the new clause.

[Dr Whitehead]

I thank the Minister for her reply. She will not be surprised to know that we do not entirely go along with all of it, but I appreciate what she has said. Indeed, it may be that her remarks are taken into account when we discuss the next new clause. On that basis, I have no intention of pressing this to a vote, and I beg to ask leave to withdraw the clause.

Clause, by leave, withdrawn.

New Clause 13

OEP register

“(1) The OEP must maintain a register of communications between it and Ministers (or government departments).

(2) The OEP may omit from the register communications which it considers trivial or otherwise unlikely to be of interest to the public.

(3) The OEP must publish the register.” .—(Dr Whitehead.)

This new clause requires the OEP to keep a public register of correspondence with the Government.

Brought up, and read the First time.

[Dr Whitehead]

I beg to move, That the clause be read a Second time.

This is an innocuous-looking new clause, but it is potentially quite important. Indeed, we think it should be an important part of the process, precisely because of what the Minister just said in response to the suggestion from my hon. Friend the Member for Newport West about the stated and apparent independence of the OEP, as far as the Department is concerned.

The new clause simply states that the OEP should maintain a register of communications between it and Ministers or Government Departments. Obviously, there is a statement in that clause to say that trivial things—such as the Minister ringing up to ask whether they had a spare sandwich—should not be included in the register, but significant communications between the OEP and Ministers should be recorded in the register, and that register should be published.

What that would mean, quite simply, is that there would be on the record a transparent adumbration of the occasions on which there has been conversation between Ministers and the OEP. While obviously it is not suggested that the record should go into detail on what the communication was—it is not a public record to that extent—it would show the extent to which the OEP was acting independently or the extent to which it might be under duress, shall we say, from ministerial quarters in its doings. If the Minister is serious in what she says about the independence of the OEP, despite some of the apparent constraints placed on its independence in the Bill, I would have thought she would welcome the new clause as a pretty good way of enabling us to see on the table what was going on and enabling the OEP, if it needed to, to show that it had been placed under pressure by Ministers. If, indeed, it was placed under pressure by Ministers, that pressure would be in a public place, it would be seen by all and it could therefore be remedied.

[Rebecca Pow]

I thank the hon. Member for the new clause. I share his interest in ensuring that the OEP acts transparently in the exercise of its functions. That is why we have created, in clause 22, a duty on the OEP to have regard to the need to act transparently. We have also required the OEP, in clause 38, to make public statements when it carries out various enforcement activities. In carrying out the duty in clause 22, the OEP would normally make information about its work publicly available—perhaps the shadow Minister has missed that element.

However, there may be certain situations where it is inappropriate and unhelpful for it to do so. There is a difference between what is in the public interest and what might be of interest to the public or to some members of the public. In particular, the OEP will need to communicate with public authorities, including Departments, in the exercise of its scrutiny and enforcement functions. Those communications will require a degree of confidentiality if the OEP is to engage effectively and productively on sensitive issues with public authorities, and avoid prejudicing possible enforcement action. The effect of the new clause might be to remove that necessary confidentiality from the OEP’s interactions.

The new clause would require the OEP to maintain a continuous running commentary on its communications with Ministers and their Departments, which would be administratively burdensome and a poor use of resources, given the other provisions we have included in the Bill on transparency, reporting and public statements. The hon. Member asked whether ringing up to order a sandwich should be recorded. That is a good point, because it is not at all clear in the new clause what exactly the register would have to contain. Is it the full text of the communication? Potentially, if one was having to record everything, one would have to record those things as well. It is just a small point.

[Rebecca Pow]

I could not agree more. I thank my hon. Friend for clarifying that point, because he is absolutely on the money—not that the OEP is a fundraising body, of course.

There is nothing in the Bill, of course, to prevent the OEP from setting up a register of significant communications should it choose to do so, but we do not believe that it should be required to do so as a legal obligation. It is, after all, an independent body. To clarify how independent it is, I should say that it will obviously be operationally independent from the Government and governed by the non-executive members appointed through the regulatory public appointments process.

On the question of the OEP potentially deciding it wants to set up a register, I should mention that the Office for Budget Responsibility has a register similar to that proposed by the hon. Member. That is not a statutory requirement; rather, the OBR produces it of its own accord, and we believe it must remain for the OEP to decide how to fulfil its duty to have regard to the need for transparency. The new clause is somewhat inappropriate and unnecessary, and I ask the shadow Minister to consider withdrawing it.

[Dr Whitehead]

I am not sure that I will any more, actually. The Government’s suggesting that the Committee should move swiftly on because they do not particularly like an Opposition new clause does not strike me as full participation in the spirit of what we are supposed to be doing—that is, we, the Opposition, get the opportunity to put amendments forward, they are discussed and answered properly, and then we move on. That is what I hope will happen with this new clause.

I am not sure whether the Minister is saying that, if the OEP thinks it would like to set up a register—sandwiches notwithstanding—of its communications with Ministers and to publish those communications, Ministers would be happy to go along with that and would not in any way seek to impede it. Alternatively, is the Minister saying that because she thinks the correspondence and communications between Ministers and the OEP must take place in an air of confidentiality, she would discourage the OEP from doing that if it wanted to?

The new clause would clear that up; it says there should be a register. Its subsection (2) states that the OEP does have discretion, and the word “may” creeps in:

“The OEP may omit from the register communications which it considers trivial or otherwise unlikely to be of interest to the public.”

That is what you might call a sandwich clause. It does not need to put that stuff in; it merely needs to maintain a register to indicate the general degree of communication that is going on and how that communication is working.

[Rebecca Pow]

To clarify, there is nothing in the Bill that prevents the OEP from setting up a register. I cannot reiterate any more than I already have that it is an independent body: if it decides it wants to set up a register, that is purely up to the OEP. I reiterate again that we do not believe that that should be a legal obligation on the OEP—after all, it is an independent body and it will think through these things for itself.

[Dr Whitehead]

That was not quite the question that I asked the Minister. What I asked was: if the OEP did decide to set up its own independent register, what would Ministers have to say about its being a transactional register—not a register of independent actors, but a register of things happening between people, including Ministers?

Would the OEP be encouraged to do that by Ministers? Would Ministers be happy to go along with that if the OEP did it? Alternatively—we would probably never find this out because we would not know what the communications were—would Ministers say, for the reasons the Minister has outlined, “That is a pretty bad idea, OEP. You don’t really want to be doing that. We might say, in theory, that you are able to set up your own register, but we as Ministers seriously discourage you from doing it.”

We would be considerably comforted if the Minister said this afternoon that not only could the OEP set up its own register, but she would positively encourage it to do so, in the interests of transparency and of ministerial communications being as public as possible.

[Cherilyn Mackrory (Truro and Falmouth) (Con)]

I am just trying to clarify something. We have had various debates on the independence of the OEP and now the hon. Gentleman is asking Ministers to give their pre-emptive influence as to whether the OEP should do one thing or another. It might just be me, but I find that the Opposition amendments and new clauses are trying to pre-empt the OEP’s own terms of reference, which it will decide for itself.

[Dr Whitehead]

What I was doing was engaging in a bit of what-iffery. The Minister came back to me and said that the OEP could set up its own register, if it wanted to do. That is not what we want to do in the new clause; we just want a register to be set up—that is quite clear and straightforward. The OEP would have some discretion over what it consisted of, but the register would be there on the table for public record. That system operates in a lot of other legislatures and jurisdictions, to a greater or lesser extent. It does not bring the world tumbling down; it brings transparency.

[Rebecca Pow]

To back up the strong point made by my hon. Friend the Member for Truro and Falmouth, would the hon. Gentleman agree that the whole point about the OEP is that it is an independent body and Ministers cannot encourage it? That is the whole point of its independence.

[Dr Whitehead]

That is indeed absolutely what we hope will happen and what the new clause is intended to underpin. The Minister, I think, has just made a further point in favour of the new clause—the effect of her words often goes considerably beyond what she thinks. That is very good and positive.

I do not wish to say too much more about the new clause. I have been tempted by interventions to go down particular routes, but I emphasise the simple, central point. This is about fresh air, light and transparency, and actions taken by public bodies, for the public good, being available to the public. It is as simple as that. The fact that there would be a requirement does not put any constraints on anybody’s actions; it simply makes sure that the light of transparency is properly shone, and is guaranteed to be shone. That is what the public would expect to happen in the case of an independent body that nevertheless appears to have close relations with the Government, in terms of its independence.

[The Chair]

I am unclear as to whether the hon. Gentleman is seeking to divide the Committee.

[Dr Whitehead]

Sorry, Mr Gray. I have been goaded beyond endurance in this particular debate, so I ask for a Division.

Question put, That the clause be read a Second time.

--- Later in debate ---

Brought up, and read the First time.

[Dr Whitehead]

I beg to move, That the clause be read a Second time.

Let us see how we get on with this one, Mr Gray. Again, this is a very simple new clause; I thought the last one was simple, but there we go. It places an environmental responsibility on Ofwat—in the same way, I talked a while ago about what does not happen at the moment, but I sincerely wish would happen, with Ofgem.

The new clause sets out that the director general of water services, who is mentioned in the Water Industry Act 1991, which was put in place before modern Ofwat came into being—the director general of water services now works closely with Ofwat on regulation of the water industry—and the Minister, which is effectively Ofwat,

“contribute to achievement of any relevant environmental targets set under the Environment Act 2020.”

It would mean that any targets for water companies would have an obligation attached to them: that Ofwat must work towards those targets.

This is an important point for water regulation and, indeed, any other form of industry regulation. What regulators do is based on a brief from the Government about their overall activities. Even though it is independent, the regulator will, to a considerable extent, ensure that what it does is guided by that overall requirement.

If, for example, the general direction is simply to go for value for money for customers, important though that is, and if that is the guiding light for that particular regulator, it will stick by that at the expense of other considerations that could balance it out in the interests of, for example, environmental targets.

The new clause seeks to balance what the regulator is doing on those targets. It is quite proper that it should have an interest in the targets. Surely that is one of the aims of the targets in the Bill—to ensure that we are working together to get them achieved. If important parts of the water industry are not bound into seeking to achieve those targets, that weakens the overall push forward.

The new clause is not authoritarian. It is not trying to get anything done that should not be done. It simply tries to make sure that everyone is bound together in making sure that the targets work well in the water industry.

[Rebecca Pow]

The Government recognise the hon. Member’s intention that the water industry should play its role in achieving targets set under the Bill, particularly in the priority area of water, but I do not believe that the new clause is necessary, given the legislative requirement to achieve long-term environmental targets.

Clause 4 will place the Secretary of State under a duty to ensure that the targets set under clause 1 are met. At least every five years, the Government must review their environmental improvement plan and, as part of that, must consider whether further measures are needed to achieve its targets. The Government must also periodically review its long-term targets set under the Bill, alongside other statutory environmental targets, to consider whether meeting them collectively would deliver significant environmental improvement in England.

In addition, both the Secretary of State and Ofwat are already placed under environmental duties by section 3 of the Water Industry Act 1991, which was referred to by the hon. Member. Section 2A of the Water Industry Act 1991 enables the Secretary of State to set out strategic priorities and objectives for Ofwat, which we have already heard about, as it relates to water companies, wholly or mainly in England, through a strategic policy statement. In preparing that statement, the Secretary of State must already have regard to environmental matters. In future statements, those matters could include targets set under the Environment Bill.

The existing legislative framework, together with provisions in the Bill, are therefore sufficient to ensure that targets, including water targets, will be achieved. While the duty to achieve targets rests with central Government, of course public authorities, including regulators, will have their role to play. As I have pointed out, the legislative framework already in place, plus the provisions in the Bill, should drive us towards ensuring that targets will be achieved. Therefore, I ask the hon. Member for Southampton, Test to withdraw the new clause.

[Dr Whitehead]

The new clause specifically talks about targets, and in the 1991 Act targets did not exist. While it is true that there are general environmental obligations in that Act, they do not relate to the Bill’s aims in terms of its targets. We have already discussed that. The Minister implies that it is more than conceivable that the general framework relating to environmental considerations could be nudged towards targets, when those are in. To some extent, it is a question of looking at whether Ofwat is doing the right thing, as those targets come in.

[Rebecca Pow]

There are other areas that will help towards this. We need a whole range of levers to meet the targets, but the targets will be set through the Environment Bill. Thinking is already going on about the relevant targets for water and they are priorities for me, so we are moving on that.

A river-based management planning process, which the Environment Agency is currently revising, will also be a key measure and stage in identifying some of the other levers that will be needed to complement the powers over the regulatory stuff, as well as the targets in the Bill. Does the hon. Gentleman agree?

[Dr Whitehead]

Since I have only just heard that, I am not sure I can completely agree with it. The Minister is suggesting that there is a mesh of things there already, which could lead towards moves unpinning the targets. I hope the Minister is right about that process. I am not absolutely sure that they are as strong as we might like them to be in terms of what the new clause suggests, but I am sure that the Minister would be able to review that position, if it turns out that, once those targets are set, the mesh is not strong enough to impel those regulators in the direction that should be taken.

On that basis, and with confidence in the Minister’s powers of persuasion for future arrangements, I beg to ask leave to withdraw the clause.

Clause, by leave, withdrawn.

New Clause 15

Reservoirs: flood risk

“(1) The Secretary of State must make regulations to grant the Environment Agency additional powers to require water companies and other connected agencies to manage reservoirs to mitigate flood risk.

(2) Regulations under this section are subject to the affirmative procedure.”—(Fleur Anderson.)

Brought up, and read the First time.

[Fleur Anderson]

I beg to move, That the clause be read a Second time.

I speak as a representative of a constituency that is no stranger to flooding. In Putney, we regularly have very high tides along the river. There is even a “high tide club” of car drivers who had not realised that the water was going to come, and found themselves water logged and stranded. People love to go and take photos of them, but it is not very good for the drivers.

I rise to speak in favour of the new clause, which has an unusual range of support—perhaps it will be the first that attracts the support of the whole Committee. I hope that all Committee members have noticed that it has the support of the Conservative hon. Members for Colne Valley (Jason McCartney), for Shipley (Philip Davies) and for Calder Valley (Craig Whittaker) and the SNP hon. Member for Falkirk (John Mc Nally), alongside my hon. Friends the Members for Bristol East (Kerry McCarthy), for Leeds North West and for Halifax (Holly Lynch). I pay tribute to my hon. Friend the Member for Halifax for all the work she has done championing the use of reservoirs and reservoirs management in mitigating flood risk for communities.

This Environment Bill will mean more collaboration between water companies to deliver the infrastructure we need and ensure that we have clean and plentiful water, now and for decades to come. That is in the bag. This new clause takes the Bill further in strengthening the powers of the Environment Agency to manage reservoirs to mitigate flood risks.

My hon. Friend the Member for Halifax introduced a private Member’s Bill on this issue last year, as a result of many years of conversations and learning between agencies, including the Environment Agency, water companies and local authorities for the area of Calderdale, about what will really help to stop communities being at risk from flooding.

Currently, the legislation that underpins water companies and their regulation has a focus on mitigating drought risk rather than flood risk.

The new clause seeks to redress the balance, as is only appropriate. Reservoir management is vital to mitigation of the damage and havoc that floods can wreak on communities such as those in Calderdale, and trials of flood management are already under way in such areas as Thirlmere in Cumbria and the reservoirs in the upper Don valley. We know that it will affect reservoirs across Wales and Scotland, as well as Wessex in England.

--- Later in debate ---

Brought up, and read the First time.

[Dr Whitehead]

I beg to move, That the clause be read a Second time.

[The Chair]

With this it will be convenient to discuss new clause 19—Duty to prepare a Tree Strategy for England—

“(1) The Government must prepare a Tree Strategy for England as set out in subsection (2) and (3).

(2) The strategy must set out the Government’s vision, objectives, priorities and policies for trees in England including individual trees, woodland and forestry, and may set out other matters with respect to the promotion of sustainable management of trees in these contexts.

(3) The Tree Strategy for England must include the Government’s targets and interim targets with respect to—

(a) the percentage of England under tree cover;

(b) hectares of new native woodland creation achieved by tree planting;

(c) hectares of new native woodland creation achieved by natural regeneration;

(d) the percentage of native woodland in favourable ecological condition; and

(e) hectares of Plantation on Ancient Woodland (PAWS) undergoing restoration.

(4) The Government must keep the Tree Strategy for England under review, and may, if they consider it appropriate to do so, revise the strategy.

(5) If the Government has not revised the Tree Strategy for England within the period of 10 years beginning with the day on which the strategy was last published, they must revise the strategy.”

The aim of this new clause is to ensure that the Government prepares a tree strategy for England. It will ensure that the Government has to produce targets for the protection, restoration and expansion of trees and woodland in England.

[Dr Whitehead]

Hon. Members will recall that we heralded the arrival of this debate on new clauses 17 and 19 a little while ago in our debates, when we drew attention to clause 100, which comes under the strange heading of “Tree felling and planting” because “planting” does not appear in the text of the clause. New clauses 17 and 19 are similar—new clause 17 has more detail in the numbers—and seek to ensure that a proper strategy for tree planting is in place and that that strategy bears some relation to the reality of the numbers that will be required if we are actually to have a real effect on this country’s emissions, particularly our net negative emissions as we go towards our net zero target, which the Minister and I have already mentioned in Committee on several occasions.

We all agreed that we were to move towards a net zero target for emissions by 2050, and trees play an incredibly important part in that net zero target, because they are nature’s almost perfect method of carbon sequestration. Particularly as trees grow from their sapling stage to their mature stage, they have a burst of sequestration. Fortunately for us, that burst of carbon sequestration as the new trees grow exactly coincides with the period ahead of us up to 2050, when we have to get to our net zero target.

--- Later in debate ---

[Robbie Moore (Keighley) (Con)]

Across the whole UK, there are about 17.6 million hectares of productive agricultural land. Does the hon. Gentleman therefore agree that it is about striking the correct balance? With the Prime Minister announcing 30,000 hectares for tree planting annually, does he agree that that will contribute towards reaching the target? It is about striking a balance.

[Dr Whitehead]

The hon. Gentleman is absolutely right and may well have anticipated my next comments. He referred to his miniature oracle—the mobile phone—to look up the number of hectares in productive use in the UK. In a tree strategy, it is important not to substitute productive land for tree cover if that can be avoided. We must ensure that marginal land, or land that is not in particularly productive use, can be afforested, and that land that is in productive use or has a high yield can continue to operate on that basis. We should not try to sequester land that could be used for other purposes to put trees on.

On the overall target, we must ask ourselves—indeed, the Committee on Climate Change has asked itself—whether it is possible to get that number of trees on the land in the UK, bearing in mind the constraints that the hon. Gentleman mentioned. The answer is yes, absolutely, it is possible. The Forestry Commission and Forest Research have done a lot of research on the amount of marginal land in the UK that could have forest cover without impinging on grade 1 agricultural land, national parks, areas of outstanding natural beauty and so on. The answer is that roughly 5 million hectares are available in England for that sort of activity. There is land available.

A tree strategy would have to take account of the point that the hon. Member for Keighley made about what land was available and how it might be afforested, as well as the incentives that might be needed to do that because a lot of that land is in private ownership and some might be purchased for forestation and made available to the public. Other land could be made available through covenants, which the Minister mentioned. But overall, the purpose would be to ensure forestation that increases overall forest cover while making room for the various things that need to be done on the land up to 2050.

I want to come to the 30,000 hectares, which the hon. Gentleman mentioned and which we have recently heard about in the press. One is not entirely clear what that figure means. A blog from the DEFRA press office on 12 June was headed—I am not sure about the grammar here—“Tree planting on the up in England”. Actually, it talked about tree planting not being particularly on the up in England, because not only have present targets been missed by up to 70% in recent years, but although total new planting in 2019-20 was indeed up, it was only up to 2,330 hectares, which is a tiny proportion of what is required annually to get anywhere near that figure by 2050.

Indeed, the figure very much squeezes the definition of what has been planted by taking into account the total number planted with Government support over the last three financial years and those hectares that the Department thinks have been planted without support—because people like planting trees. It suggests that total new planting, taking into account everything in the UK—Scotland and England as well—comes to about 13,000 hectares altogether. Therefore, even by squeezing the statistics as hard as we can, we still get a pretty low version of that tree planting figure.

Nor is it clear from that press release whether the 30,000 hectares of trees that we hear mentioned is an annual tree planting target or a target up to 2025. It states that

“tree planting in England increased last year but was below the rate needed to reach the manifesto commitment to plant 30,000 hectares of trees across the UK by 2025.”

That is very different from 30,000 a year. If the target is indeed 30,000 a year, that goes some way towards beginning to meet what the Committee on Climate Change has said is the imperative for planting up to 2050, but only halfway. We would probably need to plant about 50,000 to 60,000 hectares a year if we are to reach Committee on Climate Change target.

That is why the new clause sets out targets with particular percentages, because that is the key point: the percentage of land in the UK under woodland or forest cover, now and up to 2050. That is what the target effectively works around. We also need to understand clearly that the target has to be met between Governments, because half of the UK’s new trees were planted in Scotland last year and a substantial amount of the overall UK forest cover target would have to be met there. Therefore, not only would the target have to relate to English planting; it would have to relate to mutual action and discussions between the UK Government and the Scottish Government—and indeed the Welsh Government and the Northern Ireland Assembly—about what is to be done on tree planting in the UK as a whole. As a matter of interest, Wales comes somewhere between Scotland and England in terms of its percentage of forest cover. Northern Ireland is very bad in its forest cover, so there are further areas to be made up in that context.

--- Later in debate ---

To conclude, while I, of course, share the desire to see many more trees planted, we must set credible policies to deliver that with public support. As I have explained, the Bill is not the place to set legislative targets for forestry, first, due to it being a devolved matter and, secondly, because we must ensure that legislative targets are based on a thorough review of what is desirable, achievable and grounded in evidence. I ask the shadow Minister to, as I said, branch out and withdraw the new clause.

[Dr Whitehead]

The Minister, as she has managed to do on several occasions, presents a powerful speech in favour of a proposition from the Opposition, and then says, “Well, it is not necessary and should not be supported.”

We can all agree that the Minister is a powerful advocate of trees; she has been for a long time and I do not doubt for a minute that she will continue to be so. I hope she appreciates that that is how I characterise myself. However, she also said—we are to take this on trust—that the Government are undertaking a review of trees. I hope they are, and that they will in due course produce something that will, among other things, lead to a considerable increase in tree planting in the way that I have described and the way in which she would advocate. However, as my hon. Friend the Member for Putney said, none of that is statutory. Now is absolutely the right time to make sure that there is a statutory provision to frame the way forward.

I urge the Government to accept the provisions of new clause 17, which sets out the sort of targets we should adopt. They could be incorporated into a statutory strategy that the Government might produce. I think we are creeping towards agreement not only on how this should be done, but on the imperative to achieve or get close to those sorts of targets—the sort of thing the CCC was talking about—to ensure that we really make a difference as far as trees in the UK are concerned, subject to all the considerations that the Minister mentioned.

We want to ensure that any target is achieved in a sustainable way, without prejudice to other forms of land use in the UK, and in this case in England. Indeed, the Committee on Climate Change discussed in its report what sort of land uses should be maintained in the UK. It was very clear that we should not do something that undermines something else, but should try to move forward with a unified strategy that gives room for crop land, grassland, rough grazing and forestry, and that takes into account the fact that we are an densely populated country—one that, I would add, has succeeded in chopping down pretty much every tree in sight over the past 500 years. We have reflected on the change in land use that has come about as a result.

I recall mentioning a little while ago that the New Forest, which is near me, is a changed landscape. It is called the New Forest, but it is actually a substantially non-tree landscape that has been changed by humans over time, and the habitat has changed as a result. In and around the Minister’s constituency, there was a broad swathe of lowland forest and hilltops without trees on them. That is why a number of the dolmens, menhirs and standing stones are in their positions: they were ways of guiding people across forest areas to get to different places because the country was so heavily forested. We have wiped all that out over successive generations.

I do not think it is a case of trying to fit in a few trees to make enough progress on the margins while the rest of the country remains treeless. We need a wholesale project of restoring the tree heritage that Britain once had, while ensuring that that tree heritage can live alongside the other uses that we have brought about. That is a complicated thing to achieve.

[Rebecca Pow]

Given that the hon. Gentleman wants all this tree planting, does he welcome the great Northumberland forest, which is expanding forestry right across the landscape in the north-east, and the fact that we are kickstarting the planting of the new northern forest with a £5.7 million investment? I think he is agreeing with everything that I have said. We have said that we are ramping up tree planting to meet the advice of the Committee on Climate Change.

[The Chair]

Perhaps you can answer briefly, Dr Whitehead. It has been quite a long debate so far.

[Dr Whitehead]

Indeed. Yes, not only do I welcome those forests but I positively embrace the fact that they are being established. When we look at the older midlands forests that have arisen around Sherwood, we can see how more tree plantation can sit in the landscape alongside other uses. That is exactly what is being tried in the northern forest at the moment, so I understand and welcome that.

New clause 19, however, just says, “Get on with a tree strategy. You can put all these targets in it, but it has to be statutory so that we make sure it works properly.” I do not wish to press new clause 17 to a Division, because I accept that it includes targets that, although I think they are very important, the Minister may think might be mediated by other factors. However, it is important that we put on record that there should be a statutory tree target in the Bill and that we should get on with that strategy now. I will therefore put new clause 19 to a Division, to test whether the Committee agrees with that notion. I beg to ask leave to withdraw the motion.

Clause, by leave, withdrawn.

New Clause 18

Policy statement on environmental principles: effect

“When exercising any function of a public nature that could affect the achievement of—

(a) any targets set under sections 1 or 2;

(b) interim targets set under section 10; or

(c) any other targets that meet the conditions in section 6(8)

public authorities must act compatibly with and, where appropriate, contribute to the achievement of those targets and the implementation of the environmental improvement plan.”.—(Daniel Zeichner.)

Brought up, and read the First time.

[Daniel Zeichner]

I beg to move, That the clause be read a Second time.

After the drama and passion of the trees debate, I am happy to inform you, Mr Gray, that the next few new clauses are a touch drier and return to issues of environmental law and the philosophical underpinnings of the Bill. They are important none the less.

New clause 18 would introduce a new duty on all public authorities to ensure that all levels and arms of government play their part in achieving the environmental targets. The new clause would give the air quality, water, waste and biodiversity targets we established at the outset real relevance and meaningful drive from day one, and it would bolster the effects of clause 4. Our concern is that, as it stands, the Bill does not require or sufficiently clarify the need for action across all levels of government and other public bodies.

I will give one example, on air quality. Although part 4 of the Bill provides welcome new powers for local authorities and some useful clarification of their existing responsibilities, it does not do enough to ensure that a comprehensive approach is taken across all levels of public decision making; in fact, it rather risks putting the burden of responsibility solely on local authorities. As we know, air pollution does not respect boundaries, and action by local authorities alone will not be enough to tackle all the sources of air pollution. The new clause would help to spread that burden across central and local government and other significant public bodies in this space, requiring them to contribute to providing solutions on a national and regional scale. We fear that, without something like this, progress will be too slow. The same would be true of the other priority areas as well.

We will not push the new clause to a Division, you will be pleased to hear, Mr Gray, but we would like to hear what the Minister has to say about how those targets can be achieved, which we all want, without this kind of wider environmental duty.

--- Later in debate ---

Brought up, and read the First time.

[Dr Whitehead]

I beg to move, That the clause be read a Second time.

The proposed new clause concerns collaboration with the various devolved authorities and Governments of the UK. It sets out a number of things that need to be done, but I suspect the Minister will say that they are already in the Bill. I hope she will give us good reasons for why what is in the Bill allows for that co-operation to take place. If she can do that, I am sure this particular proposed new clause will not go to a vote.

[Rebecca Pow]

I thank the hon. Gentleman for giving me the opportunity to reiterate this Government’s strong commitment to a strong Union and to strong co-operation among the four nations in respect of the devolution settlements. How the OEP and equivalent bodies in the devolved Administrations co-operate will be a prime example of that. Co-operation between the OEP and equivalent devolved bodies is fundamental to ensuring that cross-border issues and matters that concern both devolved and reserved environmental law are dealt with effectively. However, the proposed new clause would not achieve this desirable objective.

First, the proposed new clause would place an absolute, unilateral duty on the OEP to co-operate with equivalent bodies in devolved Administrations. That would be an imbalanced and disproportionate approach, particularly as the specifics of environmental governance arrangements are yet to be confirmed across the Union. Secondly, effective co-operation requires flexibility and agency, something that the proposed new clause’s over-specific definition of co-operation would prevent. The Bill already requires the OEP to consult devolved environmental bodies on environmental governance matters that would be of relevance to them. That is covered and I hope the shadow Minister will welcome that.

--- Later in debate ---

I am sure the hon. Gentleman will agree that co-operation is not a one-way street and cannot be meaningfully achieved through a prescriptive, inflexible and unilateral duty on the OEP alone, as proposed by the new clause. Rather, it will be for the OEP and equivalent devolved bodies to decide among themselves how they can best co-operate. We have already had very good engagement and involvement with all the devolved nations, and that will continue as we progress. I want to make clear that that is very important. I hope I have convinced the shadow Minister that he does not need to press the proposed new clause.

[Dr Whitehead]

I am sure the Minister will thank us for giving her the opportunity to read out that pellucid note, which puts on the record the intention to, through the OEP, collaborate fully with the Governments of the UK. I therefore beg to ask leave to withdraw the motion.

Clause, by leave, withdrawn.

New Clause 22

Application of environmental principles

“(1) A public authority must apply the environmental principles in section 16 in the exercise of its functions.

(2) In this section ‘public authority’ has the same meaning as in section 28(3).”—(Daniel Zeichner.)

This new clause requires public authorities to apply the environmental principles.

Brought up, and read the First time.

[Daniel Zeichner]

I beg to move, That the clause be read a Second time.

New clause 22 takes us back almost to the beginning of our deliberations and to environmental principles. The December 2018 policy statement on environmental principles set out five important principles in law: integration, prevention, precaution, rectification and polluter pays. There has been wide discussion in this area, including a lot of work by the Environmental Audit Committee, which came up with about 55 recommendations. Here we are, at the tail end of our discussions about the Bill, going back to some of those points. Concerns have been raised by environmental lawyers through Greener UK. After all this discussion, their view is that the Bill

“does not yet provide an adequate route to ensuring that those important legal principles fully function to achieve”

the aims set out by the Bill.

This is important because, when matters are tested in court, this is what people will look at. Much more learned people than me have pored over these issues and these are some of the conclusions they have come to. They feel that clauses on environmental principles have not changed much since the December 2018 document. Despite discussions in pre-legislative scrutiny and on Select Committees, the expert conclusion is that the Bill

“does not maintain the legal status of environmental principles as they have come to apply through EU law.”

That is, of course, one of the crunch issues of the entire discussion around the Bill.

I will not go through in detail the fine points that they make, but they do say that

“environmental principles have been binding on all public authorities including in individual administrative decisions. This legal obligation on all public authorities to apply the principles, whenever relevant, will be undermined through the bill.”

That is a strong concern, which reflects our continuing worry that, despite the ambitions, rhetoric and optimism displayed by the Minister, when we dig down into the detail of the Bill, we see that it does not provide the same level of protection that we have enjoyed before. Sadly, that takes us back. I am sure the Minister will disagree, and we will listen to the reasons why, but we will not press this to a Division.

Environment Bill (Twentieth sitting)

Alan Whitehead Excerpts

Committee stage & Committee Debate: 20th sitting: House of Commons
Tuesday 24th November 2020 Public Bill Committees

[Rebecca Pow]

I thank my hon. Friend so much for his intervention, because he is right to point that out. I must applaud him for the work he did with the UK Government. It was a tricky issue. Timber is an important export for Indonesia, but that must not come at the expense of cutting down its precious rainforests and other forests, with all the knock-on effects that brings for the wider environment. We have the solution for timber, with sustainable timber regulations sorted out, and we are now working on other products. My hon. Friend is right to point out how beneficial that can be all around, with the knock-on effects, and I thank him for that.

As a result of that work in Indonesia, the amount of money made went up, as I said, and deforestation rates were three times lower in areas producing timber covered by the scheme than in other areas, so it worked all around. That shows how driving demand for sustainable products helps not just the people there but nature and the climate—it is an all-round win.

I assure the Committee that the Government intend to move swiftly to bring legislation forward and will lay the necessary secondary legislation shortly after COP26, which we will hold in Glasgow next November. We will consult again to gather views as we develop secondary legislation, and Parliament will have the opportunity to scrutinise many of the regulations.

[Dr Alan Whitehead (Southampton, Test) (Lab)]

At the risk of incurring your wrath, Mr Gray, I will add my congratulations to those of the Minister on the birth of your grandson. I observe that your grandson shares a name with an esteemed public servant in my city of Southampton, and I trust he will live up to the achievements of that individual even if he does not indeed pursue a great career in environmental conservation and management, which perhaps would be appropriate to today’s proceedings. That is all I am going to say.

[The Chair]

Order. I am most grateful to everyone, but no more congratulations. Thank you. But he was born in Brighton, just down the road from Southampton, so pretty close by.

[Dr Whitehead]

There we are: the coincidences are raining on each other now.

The Government new clause and new schedule represent a tremendous step forward in action not only in the UK but, as the hon. Member for Gloucester said, abroad. That demonstrates how we can reach beyond our shores in environmental protection and action, as well as in due diligence for conservation, environmental management and climate change purposes. The Opposition wholly welcome these measures. However, why were they so late in coming?

I think we can claim we nudged the Government a little in that direction, because our due diligence new clause, which we will discuss later, is about the wider subject that the Minister mentioned in her remarks and points the way. We hope that the Government will go beyond forestry products and into other areas. We tabled our new clause, which substantially anticipated the Government’s action, before Parliament went into recess for the lockdown. Can the Minister reflect on why these measures were as late as they were? In her opinion, did the nudging of not only Labour but also a large number of national and international environmental groups, who banded together to develop the due diligence way of doing things, have a substantial hand in making sure—albeit a little late in the day—that these new clauses came into being? It was just in time because the Bill will now have these clauses in it, and I hope they will fully survive the rigours of the Bill’s passage through the House and come to be a substantial part of it. I think it will be a very welcome and progressive part of the Bill.

[Rebecca Pow]

I welcome the fact that the Opposition are in agreement and welcome this. Nobody in their right minds would think this is a bad idea. I welcome that and we do share a good relationship, so I thank them for that. Yes, the amendment was tabled and we all listened to it, and indeed we had plenty of people on our side pushing for it as well. This is a global issue. Let us tackle it together globally, which I think the hon. Gentleman will agree is what we are doing.

[Rebecca Pow]

A great deal of consultation went into this and all of those views were looked at, and then it was considered what would be the best and most positive way forward. Tackling this issue is not straightforward and requires dealing with other governments around the world. One has to tread a careful path, and I believe we have come up with a really workable solution.

To answer the comment by the hon. Member for Southampton, Test about why we did not do this more quickly, the consultation took a long time and we had to take into account a great many views and discussions. We must remember that a lot of this originated from the work done by Sir Ian Cheshire and the Global Resource Initiative. We referenced that way back in March, when I was being asked why the Government were not doing this fast enough. We had the GRI’s summary and we were working up how we could continue to work from its recommendations. That is where we engaged with so many NGOs, particularly the Royal Society for the Protection of Birds and WWF, because they are valued partners with a great deal of experience. They have been helpful in inputting into what we have come up with. I hope that is helpful to the shadow Minister and I think we will have a bit more discussion about this later, but I will leave it there.

Amendment 231 agreed to.

Clause 130, as amended, ordered to stand part of the Bill.

Clause 131

Commencement

[Dr Whitehead]

I beg to move amendment 2, in clause 131, page 117, line 21, leave out “on such day as the Secretary of State may by regulations appoint” and insert

“at the end of the period of six months beginning with the day on which this Act is passed”.

This amendment seeks to prevent the Secretary of State from choosing not to enact parts of the Bill. Currently multiple provisions including the whole of Part 1 (environmental governance), Part 6 (nature and biodiversity) and Part 7 (Conservation Covenants) could never be enacted, even after the Bill has received Royal Assent.

[The Chair]

With this it will be convenient to discuss the following:

Amendment 151, in clause 131, page 118, line 2, leave out “on such day as the Welsh Ministers may by regulations appoint” and insert

“at the end of a period of six months beginning with the day on which this Act is passed”.

Amendment 152, in clause 131, page 118, line 23, leave out “on such day as the Scottish Ministers may by regulations appoint” and insert

“at the end of a period of six months beginning with the day on which this Act is passed”.

Amendment 153, in clause 131, page 118, line 29, leave out “on such day as the Department of Agriculture Environment and Rural affairs in Northern Ireland may appoint” and insert

“at the end of a period of six months beginning with the day on which this Act is passed”.

[Dr Whitehead]

The amendments all essentially say the same thing, but face towards different Secretaries of State. They refer to the back of the Bill, which we are now considering. I recommend to those Members who perhaps have not ventured to look at the backs of Bills to any great extent in their time in this House to have a good look at the back of this Bill and any Bill that comes before the House. If hon. Members are on Committees on future Bills, it is always worth having a look at the back of the Bill to see what is intended for all the legislation that has been drafted and discussed assiduously. What I mean by that is that the back of the Bill is where things actually happen or do not.

For this Bill, it is more than important that what we have discussed and made passionate speeches about actually happens, and the provisions come into force in good time, so that our intentions are carried out. The problem with intentions on many occasions is that they are not actually reflected on the back of the Bill. What happens is that the ability to implement a part of the legislation is reserved to the Minister by regulation. For people who want to take their search of the back of the Bill seriously, the statute books apparently include a large amount of legislation which just has not been enacted—a complete education Bill, for example, from a while ago. None of it has been enacted, because what is on the back of the Bill has simply not taken place.

I mentioned earlier the Office of Gas and Electricity Markets regulations and the Energy Act 2013. Why is that important? Well, part 5 of the 2013 Act, as hon. Members will recall, was about the designation of a statement on policy for Ofgem, concerning the environment and climate change. We tabled an amendment suggesting that the Government should press Ofgem to revise its mandate to ensure that it has the environment and climate change at its heart. What hon. Members might be surprised to know, and I do not recall if it was specifically mentioned when we moved that amendment, is that already in legislation is a complete section of a Bill—not just a clause—saying that the Government should introduce a strategy and policy statement requiring Ofgem to have an environmental and climate change brief.

That was agreed by a similar Committee to this one, thinking in 2013 that that was going to happen. It has not happened, simply because, on the back of the Bill is a provision that section 5 of the 2013 Act comes into force when the Secretary of State by regulation decides. Ofgem has never had such a brief in its armoury because Ministers have simply declined to implement that bit of the 2013 Act. They have sat on their hands and not carried out the work necessary to implement it. We are trying to ensure that those important parts of this Bill, which we have laboured mightily over, come into force and do what we think they will do in reasonably good order.

--- Later in debate ---

[Rebecca Pow]

I support the shadow Minister in urging me to look at the back of the Bill. What goes on at the back of a Bill is the powerhouse, and I have become terribly interested in that. One must look at the back of the Bill, as he says. I must say, however, that I think he is being terribly negative. First, these measures will be in legislation. Secondly, the strength of feeling about improving the environment is now so strong, not just among our super keen Committee members, who are stalwarts in this area, but among everybody out there—we only have to look at Twitter. I want these measures as much as he does.

I thank the hon. Member for the raft of amendments on the same point, which would have the effect, six months after the Bill receives Royal Assent, of commencing all the remaining provisions of the Bill that can be commenced by the Secretary of State, Scottish Ministers, Welsh Ministers and the Department of Agriculture, Environment and Rural Affairs in Northern Ireland.

That one-size-fits-all approach would cause very serious problems when the Bill is implemented following Royal Assent. For example, if the amendment were to be accepted, it would very likely delay the establishment of the Office for Environmental Protection by nine months. We have already launched and concluded a recruitment campaign for the chair of the OEP. Far from not doing anything, we have already started, and I hope the hon. Member will commend that.

Many parts of the Bill will be at least partially commenced much earlier than six months after Royal Assent, and other provisions will need at least in part to be commenced somewhat later, requiring further evidence gathering and public consultation, for example. That is not to mention the impact on local authorities. We will have to work very carefully and closely with them, because they are absolutely key to implementing quite a number of measures, not least in terms of biodiversity, as well as the waste measures.

I assure the hon. Member that the Government have not brought this vital piece of legislation to this House only for it to languish uncommenced in a cupboard. He gave an example of another piece of legislation. The Bill will not be like that, particularly not after all the time that has been invested in it. It has gone on for the whole year of my life as the Environment Minister. It has come and gone, and it has returned, and it is the stronger for it. It is certainly not going to languish.

We are setting ourselves legally binding targets under part 1 of the Bill, and we will need all the tools later in the Bill to support the delivery of those targets. The targets are legally binding—that is what the Bill says. Work is already going on with many organisations and the Department to work out how we will devise the targets, what the best targets to start with would be, and what later targets would be. An awful lot of work needs to go on—consultations, further detailed guidance and then new regulations—as I am sure the hon. Member will appreciate.

As we have said, we will bring forward at least one target in each of the four priority areas as well as a target for fine particulate matter, PM2.5, by the Bill’s 31 October 2022 deadline. All that work has to take place before that. Every time I speak on air quality—the hon. Member will understand this point—we are being held to account. We need to do this and we will do it. He asked whether we would trigger any of the work and the measures. We published the targets policy paper on 19 August, detailing the roadmap for delivering the targets.

I hope the hon. Gentleman will agree that we are demonstrating that this will not be a Bill that sits in a cupboard getting dusty. Ministers in devolved Administrations need a measure of flexibility in commencing the provisions in many parts of the Bill as well. Other parts of the Bill can safely be commenced on Royal Assent or two months later. Hon. Members will know that that is the customary approach for Bills. Therefore, the commencement of provisions in the Bill already strikes the right balance between automatic commencement and providing the necessary flexibility to Ministers. I hope that clarifies the position, and I ask the hon. Member to withdraw the amendment.

[Dr Whitehead]

We do not want to divide the Committee on the amendments. I welcome the Minister’s enthusiastic intimation that she has no intention that this Bill should sit on a covered shelf. I am sure she is right on that, given her commitment so far to making this Bill work, and the effort that she has put into ensuring that we move forward. Indeed, I welcome her indication that action has already started on ensuring that these provisions work. However, that does not undermine the fundamental point about the legislation, namely that it is possible for Ministers who are less dedicated than she is simply to sit on their hands. That is the central concern behind our amendments. I strongly take on board her point that she is not a Minister who is going to sit on her hands.

I wonder whether she has considered the green Cabinet Sub-Committee as part of her approach. I am not sure whether she sits on it, but if she or a colleague of hers does, she might take the opportunity gently to remind the Ministers in the Department for Business, Energy and Industrial Strategy that they also have a responsibility to implement legislation, and that the fact that they have not done so has a substantial effect on some of the things that we want to do in this Bill. She might take the opportunity to say, “Get on with it—seven years down the road, you ought to have implemented this.”

[Rebecca Pow]

The hon. Gentleman makes a very good point. I was not specifically going to comment on that, but I am sure he will agree that as a result of the Bill, other Departments will have to look at what they do on the environment. Many already do, but there will now be much more of a requirement that they do so. Does he agree that one reason why we must bring forward a lot of these measures, particularly on diversity, is that they will dovetail with the new agricultural land management system? It is important that the two schemes work together.

[Dr Whitehead]

I very much take on board the fact that the Bill is primarily about DEFRA, but it cannot work properly unless all other Departments play their part in ensuring that that happens. That point is very well made, and it underlines my request for the Minister to have a quiet word with another Department to suggest that it does as she intends, as far as this Bill as this concerned, with its areas of responsibility in relation to environmental and climate change outcomes. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 131 ordered to stand part of the Bill.

Clause 132

Transitional or saving provision

Amendments made: 63, in clause 132, page 119, line 38, leave out “the National Assembly for Wales” and insert “Senedd Cymru”.

See Amendment 28.

Amendment 64, in clause 132, page 119, line 39, leave out “Assembly” and insert “Senedd”.—(Rebecca Pow.)

See Amendment 28.

Clause 132, as amended, ordered to stand part of the Bill.

Clause 133 ordered to stand part of the Bill.

New Clause 4

Memorandum of understanding

“(1) The OEP and the Committee on Climate Change must prepare a memorandum of understanding.

(2) The memorandum must set out how the OEP and the Committee intend to co-operate with one another and avoid overlap between the exercise by the OEP of its functions and the exercise by the Committee of its functions.”—(Rebecca Pow.)

This new clause requires the OEP and the Committee on Climate Change to prepare a memorandum of understanding, setting out how they will co-operate with one another and avoid overlap in the exercise of their functions.

Brought up, read the First and Second time, and added to the Bill.

New Clause 24

Guidance on OEP’s enforcement policy and functions

‘(1) The Secretary of State may issue guidance to the OEP on the matters listed in section 22(6) (OEP’s enforcement policy).

(2) The OEP must have regard to the guidance in—

(a) preparing its enforcement policy, and

(b) exercising its enforcement functions.

(3) The Secretary of State may revise the guidance at any time.

(4) The Secretary of State must lay before Parliament, and publish, the guidance (and any revised guidance).

(5) The OEP’s “enforcement functions” are its functions under sections 29 to 38.’—(Rebecca Pow.)

This new clause provides that the Secretary of State may issue guidance to the OEP on the matters listed in clause 22(6) (OEP’s enforcement policy). The OEP must have regard to the guidance in preparing its enforcement policy and exercising its enforcement functions.

Brought up, read the First and Second time, and added to the Bill.

New Clause 25

Species conservation strategies

‘(1) Natural England may prepare and publish a strategy for improving the conservation status of any species of fauna or flora.

(2) A strategy under subsection (1) is called a “species conservation strategy”.

(3) A species conservation strategy must relate to an area (the “strategy area”) consisting of—

(a) England, or

(b) any part of England.

(4) A species conservation strategy for a species may in particular—

(a) identify areas or features in the strategy area which are of importance to the conservation of the species,

(b) identify priorities in relation to the creation or enhancement of habitat for the purpose of improving the conservation status of the species in the strategy area,

(c) set out how Natural England proposes to exercise its functions in relation to the species across the whole of the strategy area or in any part of it for the purpose of improving the conservation status of the species in the strategy area,

(d) include Natural England’s opinion on the giving by any other public authority of consents or approvals which might affect the conservation status of the species in the strategy area, and

(e) include Natural England’s opinion on measures that it would be appropriate to take to avoid, mitigate or compensate for any adverse impact on the conservation status of the species in the strategy area that may arise from a plan, project or other activity.

(5) Natural England may, from time to time, amend a species conservation strategy.

(6) A local planning authority in England and any prescribed authority must co-operate with Natural England in the preparation and implementation of a species conservation strategy so far as relevant to the authority’s functions.

(7) The Secretary of State may give guidance to local planning authorities in England and to prescribed authorities as to how to discharge the duty in subsection (6).

(8) A local planning authority in England and any prescribed authority must in the exercise of its functions have regard to a species conservation strategy so far as relevant to its functions.

(9) In this section—

“England” includes the territorial sea adjacent to England, which for this purpose does not include—

(a) any part of the territorial sea adjacent to Wales for the general or residual purposes of the Government of Wales Act 2006 (see section 158 of that Act), or

(b) any part of the territorial sea adjacent to Scotland for the general or residual purposes of the Scotland Act 1998 (see section 126 of that Act);

“local planning authority” means a person who is a local planning authority for the purposes of any provision of Part 3 of the Town and Country Planning Act 1990;

“prescribed authority” means an authority exercising functions of a public nature in England which is specified for the purposes of this section by regulations made by the Secretary of State.

(10) Regulations under subsection (9) are subject to the negative procedure.’—(Rebecca Pow.)

This new clause gives Natural England the function of producing species conservation strategies and makes related provision.

Brought up, read the First and Second time, and added to the Bill.

New Clause 26

Protected site strategies

‘(1) Natural England may prepare and publish a strategy for—

(a) improving the conservation and management of a protected site, and

(b) managing the impact of plans, projects or other activities (wherever undertaken) on the conservation and management of the protected site.

(2) A strategy under subsection (1) is called a “protected site strategy”.

(3) A “protected site” means—

(a) a European site,

(b) a site of special scientific interest, or

(c) a marine conservation zone,

to the extent the site or zone is within England.

(4) A protected site strategy for a protected site may in particular—

(a) include an assessment of the impact that any plan, project or other activity may have on the conservation or management of the protected site (whether assessed individually or cumulatively with other activities),

(b) include Natural England’s opinion on measures that it would be appropriate to take to avoid, mitigate or compensate for any adverse impact on the conservation or management of the protected site that may arise from a plan, project or other activity,

(c) identify any plan, project or other activity that Natural England considers is necessary for the purposes of the conservation or management of the protected site, and

(d) cover any other matter which Natural England considers is relevant to the conservation or management of the protected site.

(5) In preparing a protected site strategy for a protected site, Natural England must consult—

(a) any local planning authority in England which exercises functions in respect of an area—

(i) within which any part of the protected site is located, or

(ii) within which a plan, project or other activity that Natural England considers may have an adverse impact on the conservation or management of the protected site is being, or is proposed to be, undertaken,

(b) any public authority in England—

(i) that is undertaking, or proposing to undertake, a plan, project or other activity that Natural England considers may have an adverse impact on the conservation or management of the protected site,

(ii) the consent or approval of which is required in respect of a plan, project or other activity that Natural England considers may have an adverse impact on the conservation or management of the protected site, or

(iii) that Natural England considers may otherwise be affected by the strategy,

(c) any IFC authority in England which exercises functions in respect of an area—

(i) the conservation or management of which Natural England considers may be affected by the strategy, or

(ii) the sea fisheries resources of which Natural England considers may be affected by the strategy,

(d) the Marine Management Organisation, where—

(i) any part of the protected site is within the MMO’s area, or

(ii) Natural England considers any part of the MMO’s area may otherwise be affected by the strategy,

(e) the Environment Agency,

(f) the Secretary of State, and

(g) any other person that Natural England considers should be consulted in respect of the strategy, including the general public or any section of it.

(6) In subsections (4) and (5), a reference to an adverse impact on the conservation or management of a protected site includes—

(a) in relation to a European site, anything which adversely affects the integrity of the site,

(b) in relation to a site of special scientific interest, anything which is likely to adversely affect the flora, fauna or geological or physiographical features by reason of which the site is of special interest,

(c) in relation to a marine conservation zone, anything which hinders the conservation objectives stated for the zone pursuant to section 117(2) of the Marine and Coastal Access Act 2009, and

(d) any other thing which causes deterioration of natural habitats and the habitats of species as well as disturbance of the species in the protected site, in so far as such disturbance could be significant in relation to the conservation or management of the protected site.

(7) A person whom Natural England consults under subsection (5)(a) to (e) must co-operate with Natural England in the preparation of a protected site strategy so far as relevant to the person’s functions.

(8) The Secretary of State may give guidance as to how to discharge the duty in subsection (7).

(9) A person must have regard to a protected site strategy so far as relevant to any duty which the person has under—

(a) the Conservation of Habitats and Species Regulations 2017 (S.I. 2017/1012),

(b) sections 28G to 28I of the Wildlife and Countryside Act 1981, or

(c) sections 125 to 128 of the Marine and Coastal Access Act 2009.

(10) Natural England may, from time to time, amend a protected site strategy.

(11) The duty to consult a person under subsection (5) also applies when Natural England amends a protected site strategy under subsection (10) so far as the amendment is relevant to the person’s functions.

(12) In this section—

“England” has the meaning given in section (Species conservation strategies);

“European site” has the meaning given in regulation 8 of the Conservation of Habitats and Species Regulations 2017;

“IFA authority” means an inshore fisheries and conservation authority created under section 150 of the Marine and Coastal Access Act 2009;

“local planning authority” has the meaning given in section (Species conservation strategies);

“marine conservation zone” means an area designated as a marine conservation zone under section 116(1) of the Marine and Coastal Access Act 2009;

“MMO’s area” has the meaning given in section 2(12) of the Marine and Coastal Access Act 2009;

“public authority” has the meaning given in section 40(4) of the Natural Environment and Rural Communities Act 2006;

“sea fisheries resources” has the meaning given in section 153(10) of the Marine and Coastal Access Act 2009;

“site of special scientific interest” means an area notified under section 28(1) of the Wildlife and Countryside Act 1981.” —(Rebecca Pow.)

This new clause gives Natural England the function of producing protected site strategies and makes related provision.

Brought up, read the First and Second time, and added to the Bill.

New Clause 27

Wildlife conservation: licences

‘(1) In section 10 of the Wildlife and Countryside Act 1981 (exceptions to section 9 of that Act), in subsection (1)—

(a) in paragraph (a), omit the final “or”;

(b) at the end insert “or

(c) anything done in relation to an animal of any species pursuant to a licence granted by Natural England under regulation 55 of the Conservation of Habitats and Species Regulations 2017 (S.I. 2017/1012) in respect of an animal or animals of that species”.

(2) In section 16 of that Act (power to grant licences), in subsection (3)—

(a) in paragraph (h), omit the final “or”;

(b) at the end insert “or

(j) in England, for reasons of overriding public interest”.

(3) In that section, after subsection (3A) insert—

“(3B) In England, the appropriate authority shall not grant a licence under subsection (3) unless it is satisfied—

(a) that there is no other satisfactory solution, and

(b) that the grant of the licence is not detrimental to the survival of any population of the species of animal or plant to which the licence relates.”

(4) In that section, in subsections (5A)(c) and (6)(b), after “two years,” insert “or in the case of a licence granted by Natural England five years,”.

(5) In that section, in subsection (9)(c), after “to (e)” insert “or (j)”.

(6) In the Conservation of Habitats and Species Regulations 2017 (S.I. 2017/1012), in regulation 55(10), for “two years” substitute—

“(a) five years, in the case of a licence granted by Natural England, or

(b) two years, in any other case.”’ —(Rebecca Pow.)

This new clause makes provision relating to licences granted under regulation 55 of the Conservation of Habitat and Species Regulations 2017 and section 16 of the Wildlife and Countryside Act 1981.

Brought up, read the First and Second time, and added to the Bill.

New Clause 31

Use of forest risk commodities in commercial activity

‘(1) In Schedule (Use of forest risk commodities in commercial activity)—

(a) Part 1 makes provision about the use of forest risk commodities in commercial activity,

(b) Part 2 makes provision about enforcement, and

(c) Part 3 contains general provisions.

(2) Regulations under the following provisions of Schedule (Use of forest risk commodities in commercial activity) are subject to the affirmative procedure—

(a) paragraph 1;

(b) paragraph 2(4)(c);

(c) paragraph 5 (except for paragraph 5(2)(b) and (5));

(d) paragraph 7;

(e) Part 2.

(3) Regulations under the following provisions of Schedule (Use of forest risk commodities in commercial activity) are subject to the negative procedure—

(a) paragraph 3;

(b) paragraph 4;

(c) paragraph 5(2)(b) and (5).”—(Rebecca Pow.)

This new clause inserts NS1 and specifies the Parliamentary procedure for making regulations under that Schedule.

Brought up, read the First and Second time, and added to the Bill.

New Clause 1

The environmental objective

‘(1) The environmental objective is to achieve and maintain a healthy natural environment.

(2) Any rights, powers, liabilities, obligations, restrictions, remedies and procedures arising from this Act must be enforced, allowed and followed for the purpose of contributing to achievement of the environmental objective.’—(Dr Whitehead.)

This new clause is intended to aid coherence in the Bill by tying together separate parts under a unifying aim. It strengthens links between the target setting framework and the delivery mechanisms to focus delivery on targets.

Brought up, and read the First time.

Question put, That the clause be read a Second time.

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[Rebecca Pow]

The hon. Lady leads me neatly on to say that the UK does not need the EU to improve the environment; our high regulatory standards on environmental protection are not dependent on EU membership. Rightly, one could say that over the years we have taken on board standards, such as those governing sewage in water, but we have actually influenced a lot of European policy. Now we are going further. We often led the way, as members of the EU will acknowledge.

To continue with the same approach as the EU is not good enough. I know that many members of the Committee are well aware of the damaging effects of some EU policies, in particular the common agricultural policy. The thought behind it was good, but the environmental consequences are not necessarily to be lauded. That is why we now have this great opportunity to change it, as we must. We will do better.

Lest everyone always thinks that the EU offers some gold-plated system, let me give some examples of where we have already gone ahead of it. For a start, we were the first major economy to legislate for net-zero emissions by 2050. Another good example is the UK’s landfill tax, which is one of the highest in Europe and has been effective in reducing waste disposal and increasing recycling. The UK has also introduced one of the world’s strictest ivory bans to protect elephants from poaching, whereas the EU has yet to legislate on that. Similarly, our clean air strategy has been applauded by the World Health Organisation as an example for the rest of the world to follow.

I must also mention the UK’s microbeads ban, which shows the power of the Back Benchers who worked on it; just the other day, my involvement and that of many others was cited in the Chamber. That ban came into effect in 2018, but the EU did not move to introduce an equivalent ban until a year later. Those are just a few examples, not to mention our recent ban on single-use plastics—plastic straws, drink stirrers and cotton buds—coming into force in October 2022. We are ahead in many cases.

There are concerns about non-regression, but surely, after we have sat here for weeks going through the Bill with a fine-toothed comb, it is obvious that we have a real, detailed framework of targets, monitoring and reporting. We are then to be held to account on whether the improvement is actually occurring: Parliament will be able to scrutinise. There will be a closer watch on these things than ever before, which is a good thing. The Secretary of State is required to report to Parliament every two years on what is happening on the environmental front internationally—to look at the new environmental laws being introduced, sift through them and work out which ones would benefit us.

[Dr Whitehead]

Would the Minister at least agree that nothing in the new clause suggests that we should be pegged to EU law, as we were in the past? It simply says that a snapshot should be taken at the point of departure, so that there is something to stand on when it comes to things that we wish to carry out in the future. Far from pegging us back, it actually supports the sort of thing the Minister is suggesting.

[Rebecca Pow]

We have reached that point already. We have been in the EU, so have had all the same laws. We are not going to sweep them all away, but we will build on them. When that review of international law is done, the EU laws will also be looked at.

I think we have covered what the hon. Member for Cambridge is asking for. On the SI points—I am very interested that the hon. Gentleman has looked at that report about the SIs—I should say that, three to five years after Royal Assent, the responsible Department must submit a memorandum to the relevant Commons departmental Select Committee, published as a Command Paper. The memorandum will include a preliminary assessment of how the Act has worked in practice, relative to objectives and benchmarks identified during the passage of the Bill and in supporting documentation.

The Select Committee, or potentially another Committee, will then decide whether it wishes to conduct a further post-legislative inquiry into the Act. Perhaps we should send that to the authors of that report, because perhaps they were not aware of it. I think it is really helpful, and I hope that it helps.

I have not yet mentioned the OEP, which will help to uphold our standards as well. It will be absolutely essential, ensuring Governments are held to account for the environmental performance I mentioned before. All that goes further than the EU’s environmental governance framework, with stronger binding remedies available to the courts and a wider scope to hold all public authorities to account on the environment. It is much wider.

Our sovereign Parliament must be able to fully realise the benefits of regulatory autonomy in order to take action on improving environmental protections in the future. To support parliamentary scrutiny of our ambitions, the Bill contains provisions in clause 19 that allow Parliament to hold the Government to account on delivering their commitments to improving environmental protections, and where a new Bill contains environmental provisions, the Ministers in charge of that Bill—who will potentially be Ministers in other Departments—will be required to make a statement confirming whether it maintains the level of environmental protection in place at the time of the Bill’s introduction. I hope that has been helpful, and I ask the Opposition if they now might withdraw the new clause.

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[Dr Whitehead]

I beg to move, That the clause be read a Second time.

This new clause concerns well consents for hydraulic fracking: cessation of issue and termination. Hon. Members may ask themselves, “What has fracking got to do with this Bill? Why is there a new clause about fracking when we are talking about other issues entirely?” I would contend that fracking, or potential fracking, is central to many of the issues that we have discussed. The current fracking regime and whether or not wells are being fracked cut across, potentially considerably so, the Bill’s protections and provisions relating to the natural environment, biodiversity and various other issues. There are a number of worrying issues relating to how fracking is carried out, how its consequences are dealt with, and how its by-products come about and are or are not disposed of.

I am sure that hon. Members will have access to a fair amount of information about the fracking process and that they will be aware that, as far as this country is concerned, it has not got very far. The Cuadrilla well in Preston was paused on the grounds that it caused earthquakes when the fracking process began. Although the then BEIS Secretary, the right hon. Member for South Northamptonshire (Andrea Leadsom), used a provision to direct that that particular drilling company should not proceeded, that provision also allowed for corners to be cut on standards, so that it could get going with the fracking process. The standard relating to seismic disturbance was only a small part of the substantial environmental consequences to which the widespread introduction of fracking would give rise.

Mercifully, fracking is not used substantially in this country, but it is in other countries. When I visited Texas some time ago, I went to Austin, which is right in the middle of the fracking industry, in the large, relatively easy-to-access basin that covers a lot of Texas and in which a lot of fracking wells have been drilled. As we came into the airport, we could see ahead of us what looked like a moonscape. There was a large number of circular pads with extraction equipment covering the landscape as far as the eye could see. It also glinted in the sun, inasmuch as attached to those fracking pads were a number of what looked like ponds or small lakes. It looked like a landscape of lakes, but it was not. It was a landscape of tailing ponds associated with the fracking pads, and in which were placed the results of the fracking process—the fracking fluid that had been used to blast the rocks apart, which contained substantial chemicals to assist in that process. If they were to be produced in this country in the quantities suggested—at least 10,000 or so cubic metres of fluid per fracking pad—they would be classed as hazardous waste and would need to be disposed of very carefully. There are actually very few hazardous waste sites in this country that can take that kind of waste. The solution in the United States was that, on some occasions, they injected the waste back down into deep basins, which is not ideal. Alternatively, they just kept it on the surface in tailing ponds on the landscape. That could be the future for us, if we were to develop fracking to any great extent.

As I say, we have had only two goes at fracking in this country so far. They happened to be in two areas of the UK that contain the seams from which gas can be extracted through the fracking process. One is the Bowland shale in the north-west of the country, which happens to encompass the Lake District national park. The other is across the Weald and into South Downs national park, an area of outstanding natural beauty that goes across Sussex and into Hampshire. If we had a substantial fracking industry in the UK, wells would be drilled in those two concentrated areas. There would be a concentration of wells in that precious landscape, possibly like the concentration that I saw in Austin, Texas.

The Infrastructure Act 2015 placed restrictions on where fracking can take place, but it did not have a great deal of traction in this country. Modern fracking can proceed by diagonal drilling; it does not have to involve drilling down. An interesting discussion emerged about the extent to which parts of the country could be declared to be surfaces on which fracking should not take place. The Government of the day identified some areas of outstanding beauty and national parks as areas where fracking should not take place, but all people need to do is set up a fracking plant right on the boundaries of a national park and drill diagonally.

[Fleur Anderson]

Does my hon. Friend agree that if the new clause is not agreed to and fracking is not stopped, that will undermine a lot of the biodiversity and ecosystem protection elsewhere in the Bill? It is bad for the climate, the environment and pollution, and local people do not want it either.

[Dr Whitehead]

I thoroughly agree with my hon. Friend about a regime of substantial fracking. All that has happened at the moment is that fracking has been paused. All the infrastructure requirements and legislation allowing fracking on a reasonably unrestrained basis are still in place, so it is more than possible that a future Government, or indeed this Government, might decide that they no longer wish to pause fracking. Everything is ready to go. As she said, this raises the question not only of what happens to the fracking fluid but of the escape of fugitive emissions between the well being produced and the gas being conveyed. Indeed, it is the practice, when fracking has been completed, to have a so-called flare-off to clean the well’s tubes, as it were. Enormous amounts of gas mixed with elements of the fracking fluid are released into the atmosphere and simply flared.

We understand that fracking sites will have multiple wells drilled with a very large amount of transport involved, with traffic coming to remote countryside areas, the levelling of an area several football pitches wide to make the pad, and a host of other things that result in environmental despoliation in pursuit of fracking. There are also the long-term consequences when the well is depleted: will it be re-fracked? If it is depleted, will it be properly capped off? One of the problems in Texas now is that the fracking wells have not proved to be as bountiful as had been thought––what a surprise––and several have simply been abandoned with little done to cap them off. There can be a regime for doing that properly, but in the countryside where the fracking has taken place, there is continuing danger and concern in respect of surface water and water in seams underground.

[Ruth Jones]

My hon. Friend is making a powerful point. Does he agree that it is the unforeseen consequences that are so dangerous with fracking? We do not know what we do not yet know. In the mining industry near my constituency, we have mountain-top villages that are at risk of subsidence because of the extensive mine workings underneath. We need to be very careful about what we wish on future generations.

[Dr Whitehead]

That is an important point. These things do not appear and simply go away. An example of something that does appear and then go away is onshore wind. When the turbine’s life is up, it can simply be taken away. That is an advantage of that form of power, but this form of power leaves in its wake enormous environmental scars and a substantial legacy of worry for the communities in which it has taken place, even after it has finished its life. If the well is to be properly exploited, there is the potential legacy of re-fracking on several occasions when all that stuff starts again to keep the well producing. It is a grubby, dirty, environmentally unfriendly, legacy-rich business that we surely should not be inflicting upon ourselves in pursuit of something that we should leave in the ground anyway.

In an era when we say that our dependence on fossil fuel will greatly decrease—indeed, companies such as British Petroleum have said that they will cut down substantially the amount of oil that they get out of the ground, and that they will move into different areas—it does seem strange for us to be encouraging an activity that involves trying to locate the most securely fastened bits of climate-damaging hydrocarbons from the soil, blast them out of solid rock and bring them to the surface to use for fossil fuel activities. As far as this is concerned, I think the watchword is, “Just leave it in the ground.”

That is why we have given the Bill an opportunity to include protection against that happening—and, indeed, protection against the conflict that I believe exists between the Infrastructure Act 2015 and this Bill, in terms of which permissions override which protections, particularly as far as fracking is concerned. We have an opportunity to set out in the Bill that no well consents will be given, and that fracking will not take place in this country. The new clause essentially says that the Oil and Gas Authority will not issue well consents, with all the consequences that I have set out; and that permits that have been given should lapse over a period of time and the work should not be undertaken.

This is a serious issue for the future of our environment and for environmental protection, and we have the ability, literally at the stroke of a pen, to put it right in this Bill. We can put it beyond doubt that—no matter whether there is a pause, whether there are concerns about earthquakes, or whether there are concerns about the environmental consequences of wells drilled in particular places—we will grasp the issue firmly by the scruff of the neck and say, “No more. We are not doing this. It is not good for our environment, and we won’t have it anymore.”

I hope that hon. Members across the Committee will join us in making sure that that is part of the clean, safe and enjoyable environmental future that we all want to strive for, by agreeing to add the new clause to the Bill.

--- Later in debate ---

[Dr Whitehead]

The Minister has kindly and gently made quite a good case on our behalf. She has confirmed what we have said: in the UK, we are not talking about an end to or a ban on fracking, or indeed a resiling from the circumstances under which fracking was set up as an activity in the UK. The word “moratorium” means a pause; it does not mean the end of anything. It can be a more or less lengthy pause, as the Minister suggested, but it is still a pause, so the way is open for fracking to come back to this country if, as the Minister said, the circumstances permit that.

I agree with the Minister that the regimes in this country and in the US are not the same. The moonscape near Austin that I mentioned is a worse-case scenario—that is true—but even in the early applications for fracking in this country, there was pressure on the Government to cut corners. There were applications for tailing ponds, however briefly they would have been in place. A number of the environmental issues around fracking that I have mentioned would come to this country—not to the same extent as in the US, but they certainly would be part of the fracking process were it to recommence.

There are other differences between the US and the UK in terms of who owns the surface of the land. In this country, the Queen effectively has a hand in the ownership of the surface of the land, while in America, people can buy the rights to what is underneath someone’s land, drive a truck on to it and start drilling, because they have the right of access through the land to what is underneath it. That is not the case in this country. Indeed, as the Minister set out, the Infrastructure Act 2015 introduced a number of constraints on what can and cannot be done, and what cannot be done is along the lines of exactly what is done in America. The Government have nevertheless put forward, in a number of papers that they have published, a prospectus on how much fracking there would be in this country and where it would be undertaken. That would have a substantial impact on the environment in a country that is nothing like Texas.

Texas is enormous and, as everyone knows, this country is not. Not only is this country not enormous, but the shale to frack is specified as being concentrated in particular parts of it. Those areas, as I have emphasised, cover some of the most precious and beautiful parts of our country, and we should really go out of our way to preserve them and ensure that they continue, as much as possible, in their present state.

Environment Bill (Nineteeth sitting)

Alan Whitehead Excerpts

Committee stage & Committee Debate: 19th sitting: House of Commons
Thursday 19th November 2020 Public Bill Committees

[The Chair]

With this it will be convenient to discuss the following:

That schedule 15 be the Fifteenth schedule to the Bill.

Clause 101 stand part.

[Dr Alan Whitehead (Southampton, Test) (Lab)]

I appreciate that there are no amendments in this group, but I think it is worth having a brief stand part debate here to mark the fact that we have moved from talking about nature and biodiversity to a very brief section in this Bill on trees. I say very brief section, because even though the heading above clauses 100 and 101 and schedule 15 is “Tree felling and planting”, it does not actually deal with planting at all. It only deals with cutting trees down.

We think, among other things, that is a tremendous opportunity missed. Although we are limited in this particular group to talking about the clauses and schedule, I ought to draw the Committee’s attention to our proposed new clauses later in the Bill on this particular subject that do address tree planting. As we know from the Prime Minister’s 10-point plan, the question of tree planting is very much on everyone’s minds, and for the obvious reason that tree planting is going to be crucial to reaching our future net zero targets.

There have been various estimates of how many trees need to be planted over the next period to sequester the relevant amounts of CO₂ to create a significant negative contribution to our net zero target by 2050.The tree-planting ambition is not a question of running on to a site, sticking a number of saplings in the ground, running away again, and hoping that they will all have grown into large trees in 30 years and will sequester carbon satisfactorily. The process of planting trees requires an enormous amount of loving care and attention, both in the planting and in the subsequent maintenance of the trees.

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[Ruth Jones (Newport West) (Lab)]

My hon. Friend is making a powerful point. After all, page 99 of the Bill includes “Tree felling and planting”, which are the two sides of the coin, but the whole of the next page gives everybody the authority to cut down trees, as he has quite rightly pointed out. Does he agree that that is a rather negative way forward?

[Dr Whitehead]

My hon. Friend makes an important point. If someone chanced upon the Bill, flicked through it, looked at the contents at the front and said, “There is a section on tree felling and planting; that’s good, because we want to know about tree planting,” and then found that there was no tree planting, that would be rather an odd outcome, yet that is what we have in front of us. I would like to know, at the very least, what the Minister thinks can be done to rectify that omission and whether she intends, when the tree strategy is mature, to amend the Bill or, if this Bill has already gone through the whole of the House, introduce a subsequent Bill that will match up with what will be in the Environment Act, to give whole-life regulation and protection to tree planting, which is absolutely necessary for our ambitions for the future. Although we do not want to amend these clauses, because we accept that they are within the limitations written into the Bill, we give notice that we intend to proceed to rectify at least part of the issue concerning the heading of the clauses as we move on to the new clauses.

There is an indication, certainly in schedule 15, that the problem of maintenance and stewardship for the future is not anticipated, even on the question of felling and restocking trees. Schedule 15, which is an amendment to the Forestry Act 1967, requires restoration orders to be put in place—a good thing in itself—where people have felled trees when they should not have done or without the proper provisions being applied for.

Schedule 15 provides a welcome advance, in that there is clear regulatory guidance on restocking, but that guidance then starts to fall down, inasmuch as the restocking orders last for only 10 years. The precise problem that we have outlined with replanting could arise for the restocking orders. The person who has knocked the trees down might grudgingly replant more under the restocking order, but 10 years later, he or she can pull them all up again.

That is certainly not in line with the sort of stewardship that we think has to take place for trees, both in general and in particular with regard to the restocking orders. I would appreciate it if the Minister could comment this afternoon on whether she thinks the provisions in schedule 15 for the duration of restocking orders are sufficient in the light of our discussion, or whether she might review that for future reference.

[Fleur Anderson (Putney) (Lab)]

I know that I represent millions of people across the country in wanting to speak more about trees and seek more about trees in the Bill. There are some things in these clauses that we can agree on. I know that the Minister is a lover of ancient woodland and that the clauses are close to her heart as a chair of the all-party parliamentary group on ancient woodland and veteran trees.

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[Rebecca Pow]

I meant to reference that just now, so I am glad my hon. Friend mentioned it. I believe that all MPs got sent three trees—I cannot remember what year that was, but we were—and I planted my three using the instructions. Some other MPs called me up to say, “Gosh, what do I do with these things that look like twigs? How do I plant them?” I talked them through it, because some of the trees had obviously been in the box for quite a long time. It is a great project to link up these areas and to get children, in particular, planting trees.

I am going to deal now with what is actually in the clause. I would not belittle this clause about tree felling and planting at all. It is very important. We have committed to planting and protecting all these trees, and the clause will help us to protect the trees we plant. Street trees are often the closest green infrastructure to people’s homes—the hon. Member for Putney talked about how much value people in urban areas get from trees.

Clause 101 places a duty on local highway authorities to consult before felling street trees, guaranteeing the local public an opportunity to understand why a tree may be felled and to raise concerns if they wish. That is really important, because we have had issues elsewhere in the country, where it has caused an absolute storm when the council has come and cut down trees and people simply cannot understand why that was being done. It is really important to get the messaging right.

Local highway authorities should have regard to guidance the Government will publish. This will provide certainty on how the duty should be implemented, as well as consistent street tree management across the country. Under certain circumstances, however, trees are exempt from the duty, thereby not impeding action to address trees that might have to be urgently felled—for example, due to a tree disease, which would then make them a danger. The introduction of this duty reflects the Government’s commitment to protecting our urban trees, which people value so highly and which are important in the urban space.

While reported illegal tree felling rates are low, no level of illegal felling is acceptable. We propose to address this through clause 100 and schedule 15. The felling licence system works well, but is now over 50 years old. Since its introduction, the driving forces behind illegal felling have changed, and statutory protections no longer serve as a deterrent to some illegal felling. Our forestry enforcement measures resolve this and support effective enforcement of the felling licence regime.

First, we will increase the penalty for illegal felling to an unlimited fine, addressing the gains that can be made from illegal felling to realise the value of the land. Court powers to compel replanting will also be increased. Secondly, the measures will ensure that potential buyers or new owners of illegally felled land are made aware of their obligation to replant that land. That will ensure that restocking is achieved, regardless of whether that land is sold.

The hon. Member for Southampton, Test raised the issue of restocking and the 10-year issue in the schedule. If a person replants following the restocking order, but then fells the trees again, that is breaking the law. The trees can be felled only with a licence, so a fine could be applied in those circumstances. It is thanks to other changes in the Forestry Act 1967 and the changes that the Environment Bill is making that that will be the case. I hope that clarifies the issue.

The public obviously care very deeply about trees, and clauses 100 and 101 and schedule 15 will ensure that we have powers to protect and value them. That will allow us to retain the benefits they deliver for us—capturing carbon, providing shade in our streets and homes, creating homes for wildlife and, not least, looking beautiful. When I chose my flat to live in in London with my allowance, one of my chief criteria was that I could see a tree from the window, which I can. It gives me a great deal of pleasure and makes me breathe easy.

[Dr Whitehead]

I am sure that the Minister knows this already, but there are many ways of getting rid of trees other than felling them. The issue here regarding proposed new subsection 3(b) relates to the requirement

“to maintain those trees in accordance with the rules and practice of good forestry for a period not exceeding ten years”.

Maintenance in terms of the practice of good forestry might include various things, such as making sure that the trees do not get eaten, or making sure that they are sufficiently watered so that they do not die, and various other things that do not involve felling. However, the penalties in the legislation at the moment are for felling. She may want to have further thoughts about this 10-year rule in the light of that particular observation. This issue is not just about felling; it is about a number of other aspects of good forestry management of trees as they grow to maturity.

[Rebecca Pow]

I think I have given a very clear answer about the felling. If someone replants, that is an offence; they will be prosecuted for it. I think I have made that very clear. I agree with the hon. Gentleman that maintenance is important; quite clearly it is. I also agree that planting a tree is not a simple thing; it has to be planted, watered, maintained and protected from pests, and there is a great deal of work to be done. However, I think there is an understanding of that for anybody who plants trees. Indeed, particularly when we bring forward these bigger schemes, maintenance and all that side of it will be an important part and parcel of those projects and those schemes.

I hope that I have covered this issue quite clearly in my explanation and answered the questions, and I ask the Committee to agree that clause 100 stand part of the Bill.

Question put and agreed to.

Clause 100 accordingly ordered to stand part of the Bill.

Schedule 15 agreed to.

Clause 101 ordered to stand part of the Bill.

Clause 102

Conservation covenant agreements

Question proposed, That the clause stand part of the Bill.

--- Later in debate ---

Finally, Government amendments 224 and 225 to clauses 107 and 116 respectively will clarify that the reference in the clauses to section 3 of the Local Land Charges Act 1975 is to the version that has been substituted by schedule 5 of the Infrastructure Act 2015, and not to the original version. I have covered quite a lot there, Sir George.

[Dr Whitehead]

We have no feelings this afternoon that we want to oppose these clauses. On the contrary, we think that the establishment of conservation covenants is a good idea, provided that those covenants can really last in the way they work. The Minister has given a good account of how the covenants will work and can be enforced. Although this is a lengthy number of clauses in a lengthy part of the Bill, I hope hon. Members will not feel that we have failed to examine it. Indeed, having examined it, we think that these are a proper series of measures to take, and we hope that conservation covenants will, as the Minister mentioned, be an important part of the process in years to come.

Question put and agreed to.

Clause 102 accordingly ordered to stand part of the Bill.

Clauses 103 to 106 ordered to stand part of the Bill.

Clause 107

Benefit and burden of obligation of landowner

Amendment made: 224, in clause 107, page 105, line 10, after “1975” insert

“(as substituted by paragraph 3 of Schedule 5 to the Infrastructure Act 2015)”.—(Rebecca Pow.)

This amendment clarifies that the reference in clause 107(6) to section 3 of the Local Land Charges Act 1975 is to the text as substituted by the Infrastructure Act 2015 and not the original text. The original text still has effect in certain local authority areas to which the new text does not yet apply.

Clause 107, as amended, ordered to stand part of the Bill.

Clauses 108 to 115 ordered to stand part of the Bill.

Schedule 16 agreed to.

Clause 116

Power of responsible body to appoint replacement

Amendment made: 225, in clause 116, page 109, line 13, after “1975” insert

“(as substituted by paragraph 3 of Schedule 5 to the Infrastructure Act 2015)”.—(Rebecca Pow.)

This amendment clarifies that the reference in clause 116(4) to section 3 of the Local Land Charges Act 1975 is to the text as substituted by the Infrastructure Act 2015 and not the original text. The original text still has effect in certain local authority areas to which the new text does not yet apply.

Clause 116, as amended, ordered to stand part of the Bill.

Clauses 117 to 120 ordered to stand part of the Bill.

Clause 121

Duty of responsible bodies to make annual return

[Dr Whitehead]

I beg to move amendment 14, in clause 121, page 111, line 17, leave out “may” and insert “must”.

I will be brief. This is a further clause concerning mays and musts. I am sure that my hon. Friend the Member for Cambridge will be fascinated by this clause. He will observe that, in the clause, two musts are cancelled out by one may. The clause states that a designated body must make an annual return to the Secretary of State and that the annual return must give any information that is prescribed under subsection (4). However, that subsection states that the Secretary of State may by regulations make that provision in the first place. Basically, clause 121(1) and (3) put in two musts and, indeed, there are further musts below that. I am sure that my hon. Friend will want to reflect that in his calculations on these matters in the future. Perhaps there will be further opportunities to reflect further as the Bill progresses, but I do not want to press the amendment to a Division. I merely wish to point out that the musts and mays continue in substantial numbers as we progress through the Bill.

[Rebecca Pow]

I thank the hon. Member for welcoming the conservation covenant, and I am tempted to ask whether it has driven him to excitement.

[Dr Whitehead]

Steady on. I would not go quite that far. I am sort of elevated.

[The Chair]

Order. This is all very entertaining, but it is not getting us any further with the Bill.

[Rebecca Pow]

Sorry, Sir George. I could not resist it, because we were referring to the hon. Member’s excitement on Tuesday. I thank him for his proposed amendment.

Clause 121 places a duty on responsible bodies to make an annual return to the Secretary of State. The return must state whether they held any conservation covenants during the relevant period, the number of covenants and the area of land that each one covers. As the duty is already on the face of the Bill, in clause 121, no regulations will be needed to require responsible bodies to provide that information. However, conservation covenants are a tool that are intended to be used over the long term. It is therefore important that the Secretary of State should be able to obtain additional information in annual returns, if that proves necessary in the future.

Consequently, the clause also provides the Secretary of State with the power to make regulations about the annual returns. That power can be used, if needed, to require from responsible bodies more information than that already required by the Bill. I cannot anticipate at this point what such additional information might be, but any information required to be provided must be about, or connected with, the responsible body, its activities, any conservation covenant that it held during the relevant period, or the land covered by any such covenant.

As I have previously explained about similar amendments, it is therefore entirely appropriate to provide the Secretary of State with flexibility as to when and how the regulation-making provision is given effect. Primary legislation consistently takes such an approach to the balance between powers, which are mays, and duties, which are musts. I therefore ask the hon. Member to withdraw what I think is just a probing amendment anyway.

[Dr Whitehead]

I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 121 ordered to stand part of the Bill.

Clause 122 ordered to stand part of the Bill.

Schedule 17

Application of Part 7 to Crown land

[Rebecca Pow]

I beg to move amendment 71, in schedule 17, page 222, line 36, leave out from beginning to end of line 9 on page 223 and insert—

“Demesne land

3 (1) Where land belongs to Her Majesty in right of the Crown but is not held for an estate in fee simple absolute in possession—

(a) Her Majesty in right of the Crown is to be regarded for the purposes of Part 7 and this Schedule as holding an estate in fee simple absolute in possession in the land, and

(b) any estate granted or created out of the land is to be regarded for those purposes as derived from that estate in fee simple.

(2) The land referred to in sub-paragraph (1) does not include land which becomes subject to escheat on the determination of an estate in fee simple absolute in possession in the land if—

(a) it is land to which an obligation under a conservation covenant related when the estate determined, or

(b) it is not land to which such an obligation related at that time and Her Majesty in right of the Crown has not taken possession or control of the land, or entered into occupation of it.

Land subject to escheat

3A (1) This paragraph applies where land becomes subject to escheat on the determination of an estate in fee simple absolute in possession in land to which an obligation under a conservation covenant relates.

(2) The conservation covenant is not terminated on the determination of that estate, even though the appropriate authority has no liability in respect of the obligation unless and until the Crown—

(a) takes possession or control of the land, or enters into occupation of it, or

(b) becomes the holder of—

(i) an estate granted by the Crown out of the land, or

(ii) an estate in land derived (whether immediately or otherwise) from an estate falling within sub-paragraph (i).

(3) If the Crown takes possession or control of the land, or enters into occupation of it—

(a) the Crown is to be regarded for the purposes of Part 7 and this Schedule as holding an estate in fee simple in possession in the land, and

(b) that estate is to be regarded for those purposes as immediately derived from the determined estate.

(4) If the Crown grants an estate out of the land after having previously taken possession or control of the land, or entered into occupation of it, the estate is to be regarded for the purposes of Part 7 and this Schedule as immediately derived from the estate mentioned in sub-paragraph (3)(a).

(5) But if the Crown grants an estate out of the land without having previously taken possession or control of the land, or entered into occupation of it—

(a) the acts of the Crown in granting that estate are not to be regarded for the purposes of Part 7 and this Schedule as taking possession or control of the land, or entering into occupation of it, and

(b) the new estate is to be regarded for those purposes as immediately derived from the determined estate.

(6) In this paragraph and paragraph 3B ‘the Crown’ means Her Majesty in right of the Crown or of the Duchy of Lancaster, or the Duchy of Cornwall, as the case may be.

Bona vacantia

3B (1) This paragraph applies where an estate in land to which an obligation of the landowner under a conservation covenant relates vests in the Crown as bona vacantia.

(2) The appropriate authority has no liability in respect of the obligation in relation to any period before the Crown takes possession or control of the land or enters into occupation of it.”

This amendment replaces paragraphs 3 and 4 of Schedule 17 with three new paragraphs. Paragraph 3A is new and deals with the application of Part 7 to land to which a conservation covenant relates which becomes subject to escheat to the Crown (for example where the land is disclaimed by a trustee in bankruptcy). Paragraphs 3 and 3B are derived from the current paragraph 3, subject to some minor changes arising from consideration of paragraph 3A.

This amendment ensures that conservation covenants survive when land passes to the Crown through a process known as escheat. Doing so provides consistency in our overall policy on conservation covenants, which is to ensure that they can continue to affect land when it changes hands. The Bill as introduced has the effect that conservation covenants survive when land passes to the Crown as bona vacantia, or ownerless property. Land passes on bona vacantia in various circumstances, such as—in some cases—when a person dies without a will. That actually happened to the house I bought: they could not find who the house was left to in a will, so it went to the Crown and was sold by auction. This Government amendment replicates that effect for land that passes to the Crown by virtue of a process known as escheat. That can happen in a range of circumstances—for example, when a liquidator disclaims freehold land that belonged to a company that is wound up. The purpose of the amendment is to ensure that, in those circumstances, the conservation covenant is not extinguished by the escheat of the land.

Amendment 71 agreed to.

Schedule 17, as amended, agreed to.

Clauses 123 and 124 ordered to stand part of the Bill.

Schedule 18 agreed to.

Clause 125 ordered to stand part of the Bill.

--- Later in debate ---

Charges for single use plastic items

[Dr Whitehead]

I beg to move amendment 187, in schedule 19, page 229, line 9, at end insert—

“provided that such regulations do not regress upon the scope or purpose of REACH regulations as applied prior to the amended regulations being enacted”.

[The Chair]

With this it will be convenient to discuss the following:

Amendment 3, in schedule 19, page 229, line 9, at end insert—

“(1A) Regulations made under this paragraph must not regress upon the protections or standards of any Article or Annex of the REACH Regulation.

(1B) Subject to sub-paragraph (1A), the Secretary of State—

(a) must make regulations under this paragraph to maintain, and

(b) may make regulations under this paragraph to exceed parity of all protections and standards of chemical regulation with any new or amended regulations of the European Parliament and of the Council concerning the regulation of chemicals.”

This amendment would set a minimum of protections under REACH and remove the possibility that a Secretary of State might lower standards than are in place currently, whilst reserving the right for them to set higher standards should they choose.

Amendment 198, in schedule 19, page 229, line 13, at end insert—

“both in general and, in particular, the precautionary principle referred to in Article 1(3).”

This amendment would require Ministers, in considering consistency with Article 1 of the REACH Regulation, to pay specific attention to the precautionary principle.

Amendment 174, in schedule 19, page 229, line 32, at end insert—

“provided that such regulations do not regress upon the scope or purpose of the REACH enforcement regulations as applied prior to the amended regulations being enacted”.

New clause 11—Ongoing relationship with EU-REACH—

“(1) The Secretary of State must not use regulations under Schedule 19 to diminish protections provided by REACH legislation.

(2) The Secretary of State must by regulations seek to maintain regulatory parity with any new or amended regulations of the European Parliament and of the Council concerning the regulation of chemicals after IP completion day.

(3) It is an objective of Her Majesty’s Government as part of any trade negotiations with the European Union to seek to secure associate membership of the European Chemicals Agency for the United Kingdom after IP completion day to enable it to continue to participate in the EU-REACH framework.

(4) Regulations under subsection (2) are subject to the affirmative procedure.

(5) In this section, ‘IP completion day’ has the same meaning as in section 39 of the European Union (Withdrawal Agreement) Act 2020.”

This new clause would require continued parity with REACH.

[Dr Whitehead]

As you have indicated, Sir George, amendment 187 is being dealt with alongside a number of other amendments, in my name and those of other Opposition Members, and a new clause, which we fully support, in the names of a number of Members who were on the Committee but are on it no longer.

Hon. Members will be aware that we have now moved away from conservation covenants, trees and biodiversity towards a very important new issue: chemical regulation, imports, exports and trading in this country post January 2021. The amendments, and indeed the schedule that they amend, deal with a particularly perverse decision by Her Majesty’s Government upon leaving the EU. They do not wish to have a negotiation or a discussion with the ECHA, the European Chemicals Agency, about associate membership of the agency, under which the REACH regulations—on the registration, evaluation, authorisation and restriction of chemicals—sit, and I will come to that in a moment. Instead, they wish to wholly recreate a UK series of REACH regulations to be regulated by the Health and Safety Executive rather than the ECHA.

The REACH regulations are one of the substantial achievements of the EU. They are a series of regulations that comprehensively sort out the transportation, trade, appearance on particular markets, and safety of chemicals across the EU. They also provide a comprehensive regime for identifying chemicals—a sort of institutional memory of what has gone on with chemicals. Companies that deal with chemicals have to systematically provide additions to the European database of chemicals, which now stands at something like 23,000 different chemicals. That database is available to all EU member states to inform their policies relating to what they consider acceptable for chemical trade and chemicals landing in their countries, what they can avoid bringing into their countries, and what safety regulations should be applied to the chemicals. All of that has a tremendously advantageous effect on how we steward our environment.

I would go so far as to say that the REACH regulations have played a tremendous role in protecting Europe from all sorts of chemical harm, chemical malpractice and dumping of chemicals in markets an. It is generally environmentally advantageous to have regulations in such a good form, in such a comprehensive way and available for all to look at.

I might add that the REACH regulations were brought about in the EU substantially through the agency of the UK. It was UK regulations and the advance of the situation that we had in the UK at the time that persuaded those involved and assisted the development of the REACH regulations. What we did for European chemical safety is something we can proud of.

One might think that one threw all that away at one’s peril, but that is precisely what the Government have just done. They have decided that, despite quite strong indications that the UK could have engineered an associate relationship with the ECHA. The EU would have been happy for that to proceed, not least because a close, harmonious relationship in dealing with activities relating to various chemicals across Europe is a great advantage for everybody across Europe. Close harmony on chemical standards is beneficial all round.  Frankly, the Government have made a perverse decision, which I cannot fully understand, to effectively completely recreate everything that was in EU REACH on a free-standing basis, subsequent to the HSE in the UK.

[Ruth Jones]

My hon. Friend is making a powerful and important point from a safety perspective. Does he agree that it is odd that the Government have yet to provide a single good practical reason or advantage for severing ties with the world-leading EU chemicals system?

[Dr Whitehead]

Yes, indeed. My hon. Friend is right. I have not found anyone who has said what the reason is for doing it. On the contrary, every professional body and every joint industry body in this country—all the bodies concerned with chemicals; there is not one dissenter—has said that a close relationship with the EU and a continuing close association with or within the REACH regulations would be immeasurably to the UK’s advantage, and, indeed, would be an advantage all round.

Hon. Members might say, “Well, they would say that, wouldn’t they?” because the estimated cost of the industry variously accommodating itself to the new duplicate regulations in the way that is proposed is about £1 billion. That is damaging to our economy, and needless expenditure for a lot of people. Not only that, but it is needless expenditure for what appears to be, in the Bill at the moment, a substantially deficient system in the UK.

Among other things, the suggested system does not take account of a lot of the checks and balances and arrangements in the original REACH articles, which we will come to later. The database that I have talked about, if it is recreated in the UK, will take an estimated six, seven or eight years to get to a position where it will be even remotely comprehensive regarding chemical lists. Again, that is a huge amount of work for no purpose, other than us apparently having a sovereign REACH—now known in the trade as British REACH or BREACH. I think that describes fairly well what it looks like there will be in the UK REACH arrangements as set out in the Bill.

The amendments that we will put forward this afternoon would not on their own make up for the Government’s calamitous decision to go their own way on REACH in the UK, but would at least ameliorate some of the worst effects of that changeover. I will not speak to the amendments in the first group individually, but they seek, in different ways, to try to make sure that the starting point for UK REACH is that we do not, at least consciously, regress from what there was before, so that its starting framework is as close as possible, including those articles, to what REACH consists of at the moment. Yes, that does mean we would be duplicating something, but at least it would be duplicated properly, with a number of safeguards and checks and balances. I will come later to protected and non-protected articles, which, frankly, the Government appear to want to play games with.

--- Later in debate ---

[Rebecca Pow]

I thank the hon. Member for his comments. Like him, I take this whole area extremely seriously. It is imperative that we establish our own independent chemicals regulatory framework for Great Britain, UK REACH, and that we do not diverge in terms of our standards. I must say that EU REACH will continue to apply in Northern Ireland under the terms of the Northern Ireland protocol.

We are absolutely committed to maintaining high standards of protection for the environment, consumers and workers, but we want the autonomy to decide how best to achieve that for Great Britain. We will consider the best ideas from both inside and outside the EU, alongside the best evidence within the UK, but there are no plans to diverge from EU REACH for the sake of it.

As the hon. Gentleman pointed out, we were instrumental in designing the whole process in the first place, which we kicked off during our presidency in 1990. That should provide some reassurance about how seriously we take this and how there is no intention to regress. I assure stakeholders that our regulatory system will be developed and managed in line with what is best for the UK and reflect our commitment to high levels of environmental protections.

I understand what hon. Members are aiming for in amendments 187, 3, 198 and 174 and new clause 11 as regards not reducing standards of protection, but I do not believe that the amendments are necessary. There are already a number of safeguards in schedule 19. Any changes to REACH must be consistent with article 1, which includes the purpose of ensuring a high level of protection of human health and the environment. We are not moving away from that and schedule 19 clarifies that.

There are 23 protected provisions—principles that cannot be changed. These include provisions relating to the fundamental principles of REACH, such as the progressive replacement of substances of very high concern. I think the hon. Member is going to deal with those shortly, so I will not go into any more detail about them yet. The Secretary of State must also consult on any proposed amendments and obtain the consent of the devolved Administrations in respect of devolved matters.

I particularly do not agree with amendment 3 or new clause 11(2). What they seek to do is impose dynamic alignment with the EU going forward. They would lock the UK into the EU’s orbit. We must be able to follow the evidence and have the freedom to adopt approaches that are the most appropriate for us. We should be able to look inside this country and elsewhere in the world, not just in the EU, for the best ideas.

New clause 11 goes further still. It would require the Government to seek to negotiate associate membership of the European Chemicals Agency, ECHA. We continue to push for a chemicals annex to a free trade agreement to enable data sharing, but the Government have been clear that the UK will not agree to any outcomes that bring with them an obligation to align with EU laws or give jurisdiction to any EU institutions, including EU agencies or the European Court of Justice. Associate membership of ECHA would bring all of those consequences with it.

[Dr Whitehead]

Will the Minister give way?

[Rebecca Pow]

I am loth to give way, but I will be kind and will do so.

[Dr Whitehead]

I want to tease out what the Minister is saying about the fact that there is a proposal to try to get some data sharing under way with the EU. I presume she is referring to access to the wonderful database of 23,000 products that ECHA controls. The Minister appears to be saying, “Wouldn’t it be nice if we had access to that database, without any of the obligations that go with maintaining the database in the first place?” I would not have thought it likely that anyone would agree to that in a hurry. Would she agree with it, if it were the other way around? I do not think so. Surely that is not a serious proposal and should only go ahead on the basis that some sort of obligation sharing was also part of the offer.

[Rebecca Pow]

I am grateful to the hon. Gentleman for that long intervention.

[Rebecca Pow]

It was short for the shadow Minister. The Government’s approach to negotiating a future relationship with the EU includes a proposal for a chemicals annex as part of the EU free trade agreement. I thought the hon. Member for Southampton, Test might welcome that. A deal on data sharing with the EU could mitigate the need for industry to provide full-data packages. If that were to happen, we would be responsible for the updating of this as it went along. That is a clear direction of travel.

We continue to push for that, but the EU continues to reject any sectoral annexes. However, securing the chemicals annex is still our preferred outcome. It would obviously be in the interests of both UK and EU businesses, including those that will want to continue selling their chemicals into the GB market. The EU must, though, respect the UK’s position on no ECJ jurisdiction and no alignment.

As regards amendment 198, I recognise the importance of the precautionary principle for each, but I do not believe the amendment is necessary or desirable. Article 1 states that REACH is underpinned by the precautionary principle: that means that it is firmly bound into the safeguards I have already described. However, emphasising the precautionary principle could also have unintended consequences. It risks creating uncertainty about how to interpret article 1 as a whole. This is because article 1 sets out a series of overarching aims for REACH, as well as underpinning it with the precautionary principle, so I do not believe that such a consequence would be desirable.

Amendment 174 moves on from REACH itself to the UK REACH enforcement regulations. Paragraph 2(2) of schedule 19 says that any amendments must be “necessary or appropriate” for the enforcement of REACH. Taken with the protections in paragraph 1 of the schedule, I believe we are already providing what the hon. Member actually wants. There is a lot of detail there, but I therefore ask the hon. Member to withdraw these amendments.

[Dr Whitehead]

Well, the hon. Member is certainly not going to withdraw these amendments, because we think they are crucial to the establishment of any reasonable REACH regime in the UK. In a minute, we will come to some further particularly bad elements of schedule 19, which even allow the Secretary of State to chip away at protected areas that are in that schedule in the first place. What we are doing is laying down a marker that seeks to hold a line somewhere, as far as diminution and dilution of REACH regulations in future are concerned, so it is important that we put these amendments to a Division. We would particularly like to ensure that amendments 187, 198 and 174 and proposed new clause 11 are all recorded as a divided vote this afternoon.

Question put, That the amendment be made.

--- Later in debate ---

Division 40

Ayes: 5

---

Labour: 5

Noes: 9

---

Conservative: 9

[Dr Whitehead]

I beg to move amendment 107, in schedule 19, page 229, line 16, leave out sub-paragraph (4).

This amendment removes the high degree of discretion when setting REACH Chemical regulations afforded the Secretary of State by Clause 127 in the Bill. Without this amendment the Secretary of State is able to make wide provisions to chemical regulations.

This amendment illustrates the continuing problem we perceive with the way that the REACH regulations— or the breach regulations, as I call them—are to be set out in the Bill and implemented as the new regime. Paragraph 1(3) of schedule 19 refers to

“protected provision of the REACH Regulation”,

which are set out in the schedule. Having indicated that there are protected provisions in the REACH regulations, sub-paragraph (4) states that there is nothing to

“prevent any protected provision…being amended by provision made under this paragraph by virtue of section 127(1)(a).”

What appears to be the case here is like other elements of the Bill. The protected provisions of the REACH regulations under paragraph 6 of the schedule include the articles that deal with its principles and scope, animal testing, information for workers, and so on. By the way, we shall later consider the fact that a number of the articles that we think should be protected do not appear in the list, and our amendments would include them in it. However, we must first address the point that the list, even once it is agreed, seems to be infinitely malleable.

I wonder what is the purpose of our agreeing the protected list this afternoon if there will continue to be a sub-paragraph in the schedule stating that if someone decides in future that they do not particularly like it, they can zap particular protected provisions, which will no longer be protected. That is a rather cavalier way, at the very least, of going about translating protections that were in the REACH regulations into a UK equivalent. It must be apparent to anyone that the measure is not, aside from the good intentions of present Ministers, worth the paper it is written on for recreating a REACH regime with similar standards to the previous EU ones.

If paragraph 1(4) is left in the schedule, we will simply be digging a hole in which to bury the protected clauses for the future. They will not really be protected, and we shall not be able to refer to them in the long term as the substance of the REACH regulations in the UK. The amendment would simply remove the sub-paragraph so that the protected provisions would actually be protected, as they should be. The Secretary of State would not have the ability to remove the protected articles.

The Minister has already referred to several assurances that can be based on the fact that article 1 is protected. It is, indeed, in the list of protected articles, but it is not exempt from the Secretary of State’s ability to remove articles. It is nonsense, to be honest, and pretty shabby nonsense, looked at in any reasonable way.

[Daniel Zeichner]

My hon. Friend makes a powerful case. I find myself wondering what he thinks the purpose of all that is. He sets out clearly that the protections we have now can be swept away. Who benefits from that?

[Dr Whitehead]

I presume it would be someone at a future date who did not particularly like the idea that we should have high standards of chemical protection, perhaps because they thought we should have a let-it-all-hang-out, free trade, laissez-faire arrangement that would let all sorts of stuff come in from all over the world that was not subject to that high standard of chemical protection—someone who would be quite happy for those items to flood into the country at a future date—and there would be nothing we could do about it, because our protections would have been knocked over by our own Government.

[Rebecca Pow]

Amendment 107 relates to provisions that are listed in the table in paragraph 6 of schedule 19. If I hold up my copy of the Bill—it is slightly disintegrating through overuse—Members will see that I have highlighted the table, which lists different articles relating to the protected provisions. I agree with the hon. Member for Southampton, Test about the importance of the provisions, which enshrine the fundamental aims and principles of REACH. That is why we have set out a sizeable list of them and they will not change.

It may be helpful if I explain the reason for sub-paragraph (4). An ability to make

“supplementary, incidental, transitional or saving”

provisions is a standard provision in legislation. The aim is to make sure we avoid inconsistencies, discrepancies or overlaps developing in the statute book, but it would not enable us to make wholesale changes to the protected provisions. I honestly believe that the hon. Gentleman is seeing shadows. He is seeing malign opportunities and things that will occur in the future, when they are not there.

Article 1 of the REACH provisions, on aim and scope, sets out the purpose as ensuring a high level of protection of human health and the environment, promoting alternatives to animal testing and the principles that are primarily responsible for the chemicals that are sold and used. REACH is underpinned by the precautionary principle.

I want to pick out a number of the provisions—hon. Members may wish to turn to page 231 of the Bill. Article 5 is on the “no data, no market” principle. Access to the market is dependent on registering the chemical with the Health and Safety Executive. Article 25(1) is the principle that animal testing should be carried out only as a last resort. Article 35 covers the right of workers to access information received by their employers concerning the safety of chemical substances or mixtures. Article 55 covers the aim of the authorisation process to progressively replace substances of very high concern. Article 4A covers the principle that decisions that affect devolved matters can be taken only with the consent of devolved Administrations. Article 109 covers the duty on HSE to adopt operational rules to ensure transparency in matters of chemical safety. None of those things is going to change. They are all in there. The annexes are included among the protected provisions, as REACH already contains all the necessary powers to amend them. Duplicating powers in the Bill would cause legal confusion and uncertainty.

I want to give an explanation of where a little bit of tweaking might be required, as an example of how we could use the consequential amendment power, which I think is what the hon. Gentleman is worried about. One of the REACH protected provisions, article 35, states that workers and their representatives shall be granted access by their employer to the information they receive on chemical safety under articles 31 and 32. However, articles 31 and 32 apply only to substances such as individual chemicals and mixtures of chemicals—for example, commercial preparations such as paints and cleaning fluids. They do not apply to substances in what are called articles—for example, toxic heavy metals that might have been used in a piece of electronic equipment. The worker does not have that knowledge at this date in time.

If we decided to expand articles 31 and 32, so that information on dangerous substances in items such as electrical products must be sent down the supply chain, we would want to make consequential amendments to article 35, so that workers would have the right to access that information. As we gather more evidence and science moves on, more comes to light about all those different chemicals and whether, for example, something used in my hairdryer, which I use every other day, is damaging me. We want the right to amend that so that the people who produce those items, and everybody else, would know.

[Dr Whitehead]

The Minister is making quite a substantial case. She is stating that the apparent contradiction between paragraphs 1(3) and 1(4) of schedule 19 is resolved by reference to clause 127(1)(a), which includes

“supplementary, incidental, transitional or saving provision”,

meaning that those protected articles could be amended so that, at a subsequent date, they would do what they are supposed to do rather better. Clause 127(1)(b), however, states:

“A power to make regulations under any provision of this Act includes power to make…different provision for different purposes or areas.”

Will the Minister explain how that complete power to do something different if she feels like it does not undermine the idea that amendments should only be

“supplementary, incidental, transition or saving provision”?

[The Chair]

Order. I have been very tolerant of the length of interventions, because I genuinely believe that sometimes an intervention can help to progress the discussion. I make no criticism of the hon. Member for Southampton, Test, but I hope that future interventions will be kept to a single point and will be as brief as possible.

--- Later in debate ---

[Rebecca Pow]

In the chuntering from the Back Benches, some sensible points are being made. Work is ongoing, but given that we were so influential on this in the first place, we have a lot of specialists and experts who are and will be engaged in setting up the system.

 I am going to wind up now, Sir George. I think I have addressed all the points I wanted to address, and given quite a detailed explanation. I ask the hon. Member for Southampton, Test if he will kindly withdraw amendment 107, but I am not holding out much hope.

[Dr Whitehead]

We will not withdraw this amendment. The Minister’s attempted explanation has increased our resolve, because I do not think it took account of what is in the legislation. By the way, explanatory notes are not legislation—we ought to bear that in mind.

Question put, That the amendment be made.

--- Later in debate ---

See Amendment 28.

[Dr Whitehead]

I beg to move amendment 227, in schedule 19, page 231, line 22, at end insert

“and take account of all relevant scientific evidence and advice through the Agency’s science advice mechanisms”.

This amendment requires the Secretary of State and any relevant devolved authority to take into account the relevant independent scientific advice when making decisions.

[The Chair]

With this it will be convenient to discuss amendment 228, in schedule 19, page 231, line 30, at end insert

“take account of all relevant scientific evidence and advice through the Agency’s science advice mechanisms, and”.

This amendment requires the Secretary of State and any relevant devolved authority to take into account the relevant independent scientific advice when making decisions.

[Dr Whitehead]

These two amendments are what one might call blindingly obvious amendments. They seek to ensure that, before making regulations, the Secretary of State should not only consult with the bodies and persons indicated, but

“take account of all relevant scientific evidence and advice through the Agency’s science advice mechanisms”.

Be guided by the science, quite simply. That might be quite important in terms of some of our concerns about other clauses.

That is why we have tabled the amendments. I fear that they will not get a very positive hearing, but I feel sure that the Minister will agree with the sentiments behind them. I would not like us to end up as Trumptown-on-Sea and go in the opposite direction. I offer the amendments for the purpose of elucidation. We think that it is a very important principle, albeit a rather obvious one, and will therefore divide the Committee if the Minister is unable to take the amendments on board. It would be nice if she took some amendments on board, given that they are meant in the best possible way, but I fear that that will not be the case.

[Rebecca Pow]

I understand why the hon. Gentleman has tabled amendments 227 and 228. It is obviously really important that decisions in the field of chemicals regulation are based on strong science and robust evidence. That is a no-brainer. That is why any proposals to amend REACH in the future must be subject to consultation, and the agency in particular must always be consulted. We are absolutely in agreement on that. It is up to the agency to decide how to mobilise its various scientific advice mechanisms and then reflect the opinions that emerge in its consultation response. That is the role of the Health and Safety Executive, as it has the necessary expertise and experience. The Government will of course take the agency’s considered advice into account.

To that extent the amendment is necessary, but it goes beyond that, requiring the Government to go back and take those opinions into account directly. That would require the Secretary of State to bypass the agency’s expert assessment and potentially replace it with his own interpretation. Perhaps the current Secretary of State would be quite capable of that, but who is going to come along afterwards? We do not want that to happen, and I do not believe that it would be a desirable outcome or a good use of HSE’s scientific expertise.

Amendment 228 has the same aim, but in respect of the REACH enforcement regulations. Again, I understand why the hon. Gentleman has tabled the amendment. Obviously, I absolutely agree with him about the importance of science and the evidence, but the amendment risks the same undesirable consequences as amendment 227. I am sure that that is not really his intention, and therefore ask him to withdraw the amendment.

[Dr Whitehead]

I am sorry to have to do this again, but we do not think that such an obvious addition can be subject to the undesirable side-effects in the way that the Minister describes. We think that the amendments should simply be added to the Bill and we wish to emphasise that by dividing the Committee.

Question put, That the amendment be made.

--- Later in debate ---

[Dr Whitehead]

I beg to move amendment 229, in schedule 19, page 231, line 31, at end insert—

“(4) The Secretary of State, or any relevant devolved authority, shall make transparent the reasons for all decisions taken under this regulation by publishing this information in the public domain.”

This amendment requires the Secretary of State, or any relevant devolved authority, to publish an explanation as to how they reached a decision.

Although the amendments are set out for individual debate, they all refer in one way or another to a requirement to operate the UK REACH regulations transparently, publicly and openly. They mandate giving access to information by providing requirements to publish and for Ministers to report. Later amendments address the question of why the elements that are in the REACH articles at the moment are not included in the protected articles that the Minister has already talked about—articles concerned with the right to know, the publication of material and so on.

The question we want to ask through these amendments is related to basic issues around transporting chemicals, the harm that they might do and what might happen to people if they ingest products that have not been properly certified—all those things. Why are protections in terms of the publication of documents or decisions and the public right to have access to the decision-making process all missing from this part of the Bill? I would have thought that the Minister would agree that they should be present in some form or other. I do not know whether it has just been overlooked or whether there is any reason—I am jumping forward a little—why the very good protections in terms of transparency, public access and so on in the original REACH articles should not be translated directly into protected articles in the UK.

We will seek to divide the Committee on some of the amendments. In different ways, they are designed to place in the UK REACH regulations those issues of the right to know, public access and the interrogation of decisions. I am sorry that they are not in there. They should be. I do not think, Sir George, that we need separate debates on all these amendments, because they all address that principle in different ways and, for that reason, they should all be supported.

[The Chair]

I will have to take the further amendments the hon. Gentleman refers to, because they are all on the amendment paper, but if Members do not want to proceed with them, that is relatively easily dealt with—if nobody wishes to speak to them or move them, they effectively fall.

[Rebecca Pow]

I understand why the hon. Member for Southampton, Test tabled amendment 229, which I will talk to now. The amendment calls for transparency in decision making, which I completely support, but I do not think that the amendment is necessary. There must be consultation on any proposals under these provisions, as set out in paragraph 5 of schedule 19. The timely publication of responses is a fundamental part of the Government’s consultation principles. Any legislative changes as a result of that consultation will be subject to the affirmative procedure, which gives the opportunity for explanation and scrutiny, which I know the hon. Gentleman will welcome.

There is an important difference in procedure between the powers in the Bill and decision making under REACH. The Secretary of State’s decisions under REACH are given effect through a statutory instrument using the negative procedure or through Executive action, whereas powers in the Bill are exercised through the affirmative procedure, with the higher levels of explanation and scrutiny that that entails. I therefore ask the hon. Gentleman to withdraw the amendment.

[Dr Whitehead]

I am anxious not to overthrow procedure completely, but it might be acceptable to the Committee if we were able to indicate that we would, in principle, wish to divide the Committee on a number of amendments that we feel particularly strongly about, without actually proceeding to divide the Committee. Might the Committee think that that was an acceptable procedure at this time in the afternoon?

[The Chair]

I am not quite sure what the hon. Gentleman proposes. Can he be a bit clearer?

[Dr Whitehead]

Yes, I can. We face a debate on essentially the same points about transparency, public access and so on, which we feel strongly about. We particularly want the Minister to explain why articles are missing from that list of potential REACH articles. We may have a brief debate about that subsequently. However, we intend, in principle, to divide the Committee on all these amendments, which would of course take quite a while to complete. However, if we were able to state that, in principle, we wish to divide the Committee on those amendments, we could perhaps have an indicative Division on this this particular amendment.

[The Chair]

I think I now understand what the hon. Gentleman is saying. It would be an ingenious new addition to the rules of the House, but I am afraid that that is way above my pay grade.

[The Chair]

The situation is straightforward. If the hon. Member for Southampton, Test wants to make his point about the issue, the best way to do it is to have a Division on the lead amendment. When we come to the subsequent amendments, it is a question of saying, “Not moved,” or of saying, “Moved formally” and we will then take a vote. There will have to be some sort of Division, but the hon. Member for Southampton, Test does not have to take part in it if he feels that the point he is trying to make has already been established with regard to the lead amendment.

[Dr Whitehead]

Thank you, Sir George. We wish to seek a Division on this amendment, and we may seek a Division on subsequent lead amendments when they come up.

Question put, That the amendment be made.

Division 45

Ayes: 5

---

Labour: 5

Noes: 9

---

Conservative: 9

[Dr Whitehead]

I beg to move amendment 108, in schedule 19, page 231, line 37, at end insert—

“Article 13 (General requirements for generation of information on intrinsic properties of substances)”.

[The Chair]

With this it will be convenient to discuss the following:

Amendment 109, in schedule 19, page 231, line 38, at end insert—

“Article 26 (Duty to inquire prior to registration)

Article 27 (Sharing of existing data in the case of registered substances)

Article 30 (sharing of information involving tests)”.

Amendment 176, in schedule 19, page 231, line 38, at end insert—

“Articles 32, 33 and 34 (communication in the supply chain & a right to know for consumers)”.

This amendment includes Article 32, 33 and 34 of REACH (communication in the supply chain & a right to know for consumers) in the “protected provisions” that may not be amended under Schedule 19.

Amendment 110, in schedule 19, page 231, line 39, at end insert—

“Article 40(2) (third party information)”.

Amendment 111, in schedule 19, page 232, line 25, at end insert—

“save insofar as they contain endpoints for tests using animals”.

[Dr Whitehead]

As I said, these amendments deal with elements of the REACH articles as they stand that we would seek to be protected in the translation into UK jurisdiction. We are concerned that the articles mentioned in the amendments have been left out, all of which are concerned, one way or another, with public access, the right to know and transparency. My hon. Friend the Member for Putney may say a few words on that in a minute, so I will restrict my remarks to that.

I also indicate to you, Sir George, that although we would in principle seek to divide on all the amendments if the Minister is not able to accept them or to give a fully satisfactory explanation, we will seek to divide on the lead amendment only.

--- Later in debate ---

[Rebecca Pow]

I thank hon. Members for amendments 108, 109, 176, 110 and 111. I understand the desire to protect further provisions of UK REACH in the Environment Bill. However, I do not believe that these amendments are necessary or, in many cases, desirable—shock, horror!

The protected provisions of REACH are intended to ensure that the fundamental principles of REACH cannot be changed, while allowing a flexibility to ensure UK REACH remains fit for purpose. The intention is not to freeze detailed processes. Any proposed amendments by the Secretary of State are subject to consultation, to the consent of the devolved Administrations in respect of devolved matters and to the affirmative procedure, ensuring a full debate in Parliament, which I know Opposition Members will welcome.

Amendment 108 applies to article 13 of REACH, which sets out detailed provisions about alternatives to animal testing, including when animal tests can be waived—I think the hon. Member for Putney was referring to that. She wants us to avoid unnecessary animal testing and to promote alternative approaches. We agree with that aim, but adding this article to the list of protected provisions could make that more difficult. For example, it could prevent us from extending the range of tests for animal testing that may be omitted where there is appropriate justification.

The same objections apply to the articles that would be affected by amendment 109, that is, articles 26, 27 and 30, and by amendment 176, that is, articles 32, 33 and 34. These articles are not just about the principles of information sharing. They also include prescriptive details about how information should be shared with the REACH supply chain and how the agency should deal with inquiries. We should not bind ourselves to these detailed procedures going forward but instead remain free to adopt new ways of working that draw on our experience of applying REACH in the UK. The whole idea is that we will improve and benefit.

Amendment 110 would protect REACH article 40(2). Again, the point is that we do not want to freeze the detail of how REACH operates. Instead, we need the flexibility to amend REACH, to ensure that it works for the UK. In this case, article 40(2) includes specific details, such as timescales for publishing information.

I do not believe that amendment 111 is necessary or desirable. I agree that we may consider it appropriate to amend the REACH annexes to drive the use of non-animal alternatives, but the power to amend the REACH annexes is already within REACH itself, which makes it unnecessary to add an overlapping power to the Bill.

I therefore ask the hon. Member for Southampton, Test to consider withdrawing his amendments.

[Dr Whitehead]

I think I have already indicated that although we do not wish to withdraw these amendments, we will seek—for the purpose of the record, as it were—an indicative division on amendment 108. However, the fact that we will not press all the subsequent amendments to a vote does not mean that we would not ideally like to divide on them. However, we are doing this for the sake of the comfort and sanity of the Committee this afternoon, and I hope that will be appreciated.

Question put, That the amendment be made.

--- Later in debate ---

[The Chair]

Before I put the question on amendment 109, which again was tabled by Dr Whitehead, I wonder if it would be helpful if I try to explain the hon. Gentleman can achieve what he wants to achieve. With advice, I think there are two options, which apply to amendments 109, 176 and 110. I take it that the hon. Gentleman, in principle, does not want to have a Division, but does not want to concede the principle; I think that that is approximately his position. When I call each amendment and he says, “Not moved”, then there would not be a Division. The other option is that he can move each amendment, but then simply remain silent when I put the question. So, when I say, “As many of that opinion say aye”, he should just not say anything and then there will not be a Division in that instance either. Those are the only two options available to the hon. Gentleman, so I will leave them with him. The advice I have given is intended to be helpful to him and to the Committee.

Amendment proposed: 109, in schedule 19, page 231, line 38, at end insert—

“Article 26 (Duty to inquire prior to registration)

Article 27 (Sharing of existing data in the case of registered substances)

Article 30 (sharing of information involving tests)”.—(Dr Whitehead.)

Question put, That the amendment be made.

Question negatived.

Amendment proposed: 176, in schedule 19, page 231, line 38, at end insert—

“Articles 32, 33 and 34 (communication in the supply chain & a right to know for consumers)”.

This amendment includes Article 32, 33 and 34 of REACH (communication in the supply chain & a right to know for consumers) in the “protected provisions” that may not be amended under Schedule 19.

Question put, That the amendment be made.

Question negatived.

Amendment proposed: 110, in schedule 19, page 231, line 39, at end insert—

“Article 40(2) (third party information)”.—(Dr Whitehead.)

Question put, That the amendment be made.

Question negatived.

Amendment proposed: 111, in schedule 19, page 232, line 25, at end insert—

“save insofar as they contain endpoints for tests using animals”.—(Dr Whitehead.)

Question put, That the amendment be made.

Question negatived.

Schedule 19 agreed to.

Clause 126

Consequential provision

Amendments made: 58, in clause 126, page 113, line 28, leave out “the National Assembly for Wales” and insert “Senedd Cymru”.

See Amendment 28.

Amendment 59, in clause 126, page 113, line 36, leave out “the National Assembly for Wales” and insert “Senedd Cymru”.

See Amendment 28.

Amendment 60, in clause 126, page 113, line 37, leave out “Assembly” and insert “Senedd”.—(Rebecca Pow.)

See Amendment 28.

Clause 126, as amended, ordered to stand part of the Bill.

Clause 127

Regulations

[Dr Whitehead]

I beg to move amendment 149, in clause 127, page 114, line 11, leave out subsection (1)(b).

I have alluded to this amendment previously. I must admit that, having read the clause on a number of occasions for different purposes, I cannot come to any other conclusion than that subsection (1)(b) is a serious attempt to destabilise what happens before it in the clause. One has to read it differently from common English to conclude that

“different provision for different purposes or areas”

means anything other than that the Minister can do what he or she wants. That should not have a place in the Bill. I would be grateful if the Minister would explain briefly—I mean briefly—why that is in the Bill. We do not intend to divide the Committee, but we would like to hear something from the Minister to that purpose.

[Rebecca Pow]

I thank the hon. Gentleman for his contribution on this matter. Clause 127 sets out the scope of regulation-making powers as well as the procedures to be used when making those regulations. Subsection (1)(b) makes it clear that regulations made under the Bill are able to make

“different provision for different purposes or areas.”

That is a standard provision that has been used for many years in any Bill that includes delegated powers. It is necessary to provide clarification as to the flexibility of the delegated powers. Different circumstances may require different provisions. The amendment would remove necessary, proportionate and appropriate flexibility from the delegated powers, making it more difficult to deliver the ambitions set out in the Bill, including setting targets, creating deposit return schemes or delivering biodiversity net gain. I hope that was brief enough to clarify what is meant. I ask the hon. Gentleman to withdraw the amendment.

[Dr Whitehead]

I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Amendments made: 61, in clause 127, page 114, leave out line 32 and insert “Senedd Cymru”

See Amendment 28.

Amendment 62, in clause 127, page 114, line 35, leave out “the National Assembly for Wales” and insert “Senedd Cymru”.—(Rebecca Pow.)

See Amendment 28.

Clause 127, as amended, ordered to stand part of the Bill.

Clauses 128 and 129 ordered to stand part of the Bill.

Ordered, That further consideration be now adjourned—(Leo Docherty.)

Environment Bill (Seventeenth sitting)

Alan Whitehead Excerpts

Committee stage & Committee Debate: 17th sitting: House of Commons
Tuesday 17th November 2020 Public Bill Committees

[The Parliamentary Under-Secretary of State for Environment, Food and Rural Affairs (Rebecca Pow)]

I thank the hon. Member for Putney for tabling the amendment. I understand entirely the desire to ensure an appropriate level of scrutiny when this delegated power is exercised. The clause creates a narrow power for the Secretary of State to maintain a list of the most harmful chemical substances that could enter watercourses and sets out measures to monitor and tackle them, keeping pace with the latest scientific knowledge. This is a key aspect of our wider regulations that protect and enhance our water environment. The exercise of the power in the clause is subject to consultation with experts in the Environment Agency who provide scientific opinion and have a statutory duty to monitor water.

I highlight the fact that the Secretary of State will take into account the latest scientific evidence when updating lists. In addition to the EA, a lot of that evidence comes through the UK technical advisory group, a working group of experts drawn from the environment and conservation agencies for England, Wales, Scotland and Northern Ireland who already derive threshold values for UK-specified pollutants, which are monitored for the purposes of contributing to the ecological status of our surface waters. A statutory consultation requirement could not be placed on the UK technical advisory group as it is not a statutory body, but it offers valued expert advice. The Secretary of State must also consult any person or bodies appearing to represent the interests of those likely to be affected by these provisions.

I understand that the amendment seeks to increase the level of parliamentary scrutiny of the exercise of the power by upgrading to the super-affirmative resolution procedure, as the hon. Member for Putney mentioned. As we have mentioned, this procedure is used extremely rarely for statutory instruments that are considered to need a particularly high level of scrutiny—for example, legislative reform orders under the Legislative and Regulatory Reform Act 2006, which could be used to abolish, confer or transfer statutory functions or create or abolish a statutory body or office—so we do not feel that that would be appropriate.

The hon. Member was concerned about a lowering of standards, which is absolutely not the case. I know that she has a particular interest in this, and I was so interested to hear earlier that she worked for WaterAid. Lots of Back Benchers engage with WaterAid—I did—when it holds events in Parliament. It does really good work. The wider regulations require the EA to have an extensive and robust monitoring regime for chemicals in the water environment and refer to the priority substances as those that must be used to assess chemical status in surface waters. The EA will monitor for new and emerging harmful substances through an early warning system and, in consultation with the EA, the updates to the list will be based on the latest science and monitoring data, which currently suggest a potential increase in the number of substances of concern, rather than a reduction. An eye will certainly be kept on that, because it is so important.

Although I fully acknowledge the importance of parliamentary scrutiny, a super-affirmative, or indeed a standard affirmative, resolution procedure is wholly disproportionate in this instance. This power can be used only to make relatively narrow changes to existing transposing legislation for the purpose of updating certain water quality standards. The power does not extend to changing the wider regime for assessing and monitoring water quality, which is enshrined in the Water Environment (Water Framework Directive) Regulations 2017. An update to the list of priority substances involves highly technical discussions, as I have mentioned, around emerging pollutants and their threshold values, measured in micrograms per litre, and sophisticated monitoring techniques, including biota testing.

I hope that clarifies the position, and I therefore ask the hon. Member for Southampton, Test to withdraw the amendment.

[Dr Alan Whitehead (Southampton, Test) (Lab)]

As the Minster indicated, the name super-affirmative suggests that this is not an everyday procedure. It has been suggested in the amendment because the clause would allow the Secretary of State, albeit on a reasonably narrow basis, to amend or modify legislation, and thereby to degrade or completely remove environmental protections that are already in the regulations. That would essentially be a power to deregulate current regulations, underpinned by the ability to do so by simply notifying the House. We do not think that is good enough.

As my hon. Friend the Member for Putney emphasised, the super-affirmative procedure would not just allow for greater parliamentary scrutiny but would allow for greater consultation in the process. We think it is an appropriate device to add, although it is a relatively new one. It has been in place, as the Minister alluded to, since 2016.

However, the Minister has given some assurances on the limit of the Secretary of State’s power to degrade or remove secondary legislation. She has also indicated that that would not be the intention of the Government, and that, on the contrary, it is their intention to try to uprate those regulations.

[Rebecca Pow]

Apologies; I was mistaken earlier. It was the shadow Minister who tabled the amendment. In addition to all these matters, the Secretary of State will conduct a two-yearly review of significant developments in international legislation on the environment. That is another prong that will help to keep up the standards of environmental protection. I thought the hon. Gentleman might be interested to hear some of the ways we might use—

[The Chair]

Interventions must be very brief.

[Dr Whitehead]

I thank the Minister for her intervention. Alas, we will never hear the detail of what those changes might be, but the fact that she was brandishing a sheet of paper that clearly had them written on it is perhaps further assurance. I did indeed move this amendment, but the multi-talented nature of Opposition Members could have led one to believe that someone else had done so, such is the power of our interventions this afternoon.

We do not intend to press the amendment to a Division, but I hope that this is another thing for the Minister’s “to think about” box. I do not think that it is generally a good idea for secondary legislation to be put through the negative procedure on this catch-all basis. Among other things, doing so puts considerable impediments in the face of Parliamentary scrutiny, because the negative procedure requires the legislation to be prayed against. That means that the right to a debate lies with the usual channels rather than being guaranteed, as it is with the affirmative procedure.

I hope the Minister will take the general point on board for future legislative purposes that we do not think that is a good idea. We would be grateful if the Minister could have that in mind when she is reviewing the legislation. On this occasion, we are reasonably happy with the Minister’s assurances on this clause and the additional—alas, secret—assurances that she has on her piece of paper. Therefore, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 81 ordered to stand part of the Bill.

Clause 82

Water quality: powers of Welsh Ministers

Amendments made: 53, in clause 82, page 81, line 19, leave out

“the National Assembly for Wales”

and insert “Senedd Cymru”.

See Amendment 28.

Amendment 54, in clause 82, page 81, line 21, leave out “Assembly” and insert “Senedd”—(Rebecca Pow.)

See Amendment 28.

Clause 82, as amended, ordered to stand part of the Bill.

Clauses 83 to 86 ordered to stand part of the Bill.

Clause 87

Valuation of other land in drainage district: Wales

Amendment made: 55, in clause 87, page 85, line 9, leave out

“the National Assembly for Wales”

and insert “Senedd Cymru”.—(Rebecca Pow.)

See Amendment 28.

Clause 87, as amended, ordered to stand part of the Bill.

Clause 88

Valuation of agricultural land in drainage district: England and Wales

Amendment made: 56, in clause 88, page 87, line 33, leave out

“the National Assembly for Wales”

and insert “Senedd Cymru”.—(Rebecca Pow.)

See Amendment 28.

Clause 88, as amended, ordered to stand part of the Bill.

Clause 89

Disclosure of Revenue and Customs information

Amendment made: 57, in clause 89, page 89, line 9, leave out

“the National Assembly for Wales”

and insert “Senedd Cymru”.—(Rebecca Pow.)

See Amendment 28.

Clause 89, as amended, ordered to stand part of the Bill.

Clause 90 ordered to stand part of the Bill.

--- Later in debate ---

Biodiversity gain as condition of planning permission

[Dr Whitehead]

Apologies, Mr Gray, but we had previously notified the Committee that our amendments to the natural environment and environmental protection elements of the Bill would be moved by my hon. Friend the Member for Cambridge.

[Daniel Zeichner (Cambridge) (Lab)]

I beg to move amendment 169, in schedule 14, page 207, line 26, leave out paragraphs (3) and (4) and insert—

“(3) The relevant percentage is a minimum of 10%.

(4) The Secretary of State may by regulations amend this paragraph so as to increase the relevant percentage.

(5) The Secretary of State shall review the relevant percentage after 5 years or sooner.”

This amendment amends the power to vary the 10% level so that it can only be increased.

I apologise to anyone who was expecting to continue to hear the mellifluous tones of my esteemed colleague, my hon. Friend the Member for Southampton, Test. I am grateful to have a backing part; it is a huge honour.

After all the excitement this morning, I hope we can have a similarly exciting afternoon. We are coming to the bit that I have been looking forward to most since I first read the Bill: the exciting part around nature and biodiversity. Part 6 is fascinating. It is hard to imagine a more important and pressing subject when we all know that around the world, the targets we have collectively set ourselves continue, sadly, to be missed. At the same time, we look to find ways out of the economic crisis stemming from covid.

Part 6 is a very important part of the Bill. As I looked at the Bill last night in revising for today, I reread some of the 25-year environment plan. What an optimistic, forward-looking and exciting document it is, full of “wills”, “shalls” and “musts”. The trouble is that some of that enthusiasm seems to have been mislaid en route. One of the key things is that somewhere along the line, the planning White Paper came along, and there is an unresolved tension between the excellent ambition of the 25-year environment plan and those new suggestions.

As my hon. Friend the Member for Southampton, Test said at the beginning of our discussions, we think this is a good Bill, but we want to make it better. My task this afternoon is to try to help the Minister restore it to the Bill it might once have been. We could see this as a bit of a whodunnit. Who was it, and how did the changes creep in? Who did such harm to it, and how can we now help the Government make good? In some of the discussions on this schedule, the Government thought about going beyond net biodiversity gain towards net environmental gain, and we would really like that desire to be addressed.

Much of the schedule is about the planning system. I suspect many Members here have direct or indirect experience of our planning system and know how important it is. For the moment, the provisions for reducing environmental impact in the planning system are focused on preventing and mitigating harm. The net gain objective has been embraced in the national planning policy framework since 2012, when it replaced the previous policy objective of no net loss, which sought only a neutral outcome after losses and gains were accounted for. Thanks to the rules for site-based protection in the Conservation of Habitats and Species Regulations 2017, the net gain objective has been relatively effective in reducing loss of habitats and species without slowing down development, but it has been far from enough to turn the tide in nature’s decline. The principle of taking a more strategic approach to restoring nature and requiring a 10% net gain in biodiversity is one we fully support. That is what is addressed in this schedule.

We know how important that is because, sadly, the UK continues to suffer rapid biodiversity loss. The Government have failed on too many metrics: 46% of conservation priority species in England declined between 2013 and 2018. This is serious. We welcome the fact the Government have begun to address some of the issues, although we think we need to approach this serious issue in an open and clear way. We note the Prime Minister’s announcement a few weeks ago about 30% of land being protected, but we also gently point out that some 26% of that is achieved through a counting mechanism that includes areas of outstanding natural beauty and national parks. We want to address this problem. We have to be serious about it and not try to play with the figures, and our view is that at the moment the Bill is a lost opportunity to stop the decline. However, the new general condition has the potential to be an effective tool to boost biodiversity across the country, and there are many issues we want to address in the amendments to see how the Bill can be improved.

I will touch on several of our amendments, including on the length of time for which habitats should be maintained, which is 30 years; the exemptions, too many, in our view, from the biodiversity gain condition; the relationship between the new system and irreplaceable habitats; and the lack of a mechanism to guarantee what is prescribed in the biodiversity gain plan to ensure it is actually delivered on the ground. To turn to the detail of amendment 169, our fear is that we are in danger of being left with a rather unambitious percentage of biodiversity net gain that is all too easy for the Government to decrease if they choose to do so. At first sight, setting the condition for planning permission at 10% biodiversity net gain seems a reasonable thing to do, but it is important to note that the impact assessment published alongside the biodiversity net gain consultation in December 2018 said that 10% is merely the lowest level of net gain at which the Department

“could confidently expect to deliver…net gain, or at least no net loss”.

It does not appear that this is taking us very far forward. Indeed, 10% net gain is less ambitious than the current practice of some local authorities. I am told that Lichfield District Council already requires 20% net gain on new development, so although we welcome the Government’s statement and its response to the biodiversity net gain consultation, the 10% should not be viewed as a cap on the aspirations of developers who want to go further. I was pleased that the Minister reiterated this point on Second Reading. It would be very helpful if she could make a clear statement, to facilitate ambitious developers and to help them and local planning authorities, underlining that the aspiration is to go further.

A number of changes need to be made. Under schedule 14, the Secretary of State has a number of powers to make regulations, including a Henry VIII power to amend the 10% biodiversity net gain objective and to amend the types of developments the net gain will apply to. The Bill’s provisions read that “the relevant percentage” of biodiversity net gain for developers is 10%, and:

“The Secretary of State may by regulations amend this paragraph so as to change the relevant percentage.”

Our amendment is very clear: that must be amended to include a commitment to monitor and review practice, so that the level of gain can be increased in future if evidence demonstrates this is possible and needed. We also need a lock-in so that the percentage can only be increased by the Government, not simply decreased at a later date. There must be no mechanism in the Bill to lower the level of gain; that would seriously undermine the objectives of the system as a whole, and would likely result in little or no gain being achieved in practice.

Amendment 169 would ensure that the only way the 10% net gain figure could be changed is by being increased after review by the Secretary of State. It would also lock in a timeframe to ensure the percentage is reassessed after an appropriate amount of time, within a maximum period of five years.

I am sure the Minister will, as she has throughout, assure us that there is no need for concern. But to return to my whodunnit, I fear that there may be a villain in my story and Members might be able to guess who some of the contenders might be. Looking back at the Prime Minister’s “Build, build, build” speech in July, he did claim—spuriously in our view—that:

“Newt-counting delays are a massive drag on the prosperity of this country.”

We will discuss newts in more detail later, but when Government policy lurches from one approach to another, we need certainty that the commitment of the current Minister will not be trumped by future Ministers who might take a different view. Unless we get that certainty, we will certainly wish to press this amendment to a Division.

[Rebecca Pow]

I welcome the hon. Member for Cambridge as he takes the floor this afternoon. This is a tremendously exciting part of the Bill, through which we can all be a part in doing our hugely important bit for nature in this country. He is right about degradation—I am not even going to think about denying that—and about how important the Bill is. This is the tool for achieving the measures in the 25-year environment plan, which was the first environmental improvement plan. It is great that the plan is full of optimism because it sets out what we want to do and where we want to go, and these measures will be in this Bill.

Let me turn to the amendment. Responses to the net gain consultation revealed that some developers have already made voluntary commitments to no net loss or net gain and there were calls for both a higher and a lower percentage. It was quite interesting how that came out. On balance and having considered all responses, we believe that requiring at least a 10% gain strikes the right balance between ambition, creating certainty in achieving environmental outcomes, deliverability and costs for developers. It should not be viewed as a cap and the hon. Member for Cambridge has already mentioned a local authority that has set its sights higher. Many more are doing that and going voluntarily above 10%.

The hon. Gentleman mentioned the “Planning for the future” White Paper, which I think will probably be referred to a lot today. It specifically sets out support for biodiversity net gain and rightly identifies improving biodiversity as one of our most important national challenges. It is important to build the houses people want and all of the developments that we need, but that cannot be done to the detriment of the environment.

That is quite clear in the White Paper that biodiversity net gain and biodiversity more generally are one of our most important challenges. The Department for Environment, Food and Rural Affairs is working closely with the Ministry of Housing, Communities and Local Government on the implementation of biodiversity net gain to make sure it is fully integrated into the planning system. I have already said that the 25-year environment plan is the first environmental improvement plan, and all these things will work as part and parcel of one another.

The ambition of 10% net gain represents a significant step forward beyond current practice while striking a balance and meaning it does not have be reviewed as a cap. Restricting the ability to set a lower percentage requirement may force the Government to exempt any development types that cannot achieve a 10% net gain, rather than keeping them in scope and subjecting them to a lower percentage requirement. Broader exemptions would be a greater risk to the achievement of the wide policy aims than targeted application of a lower percentage gain.

Limiting the power might therefore compel future Governments to make other adjustments to the requirement, which could compromise environmental and development outcomes more fundamentally than a lower percentage of net gain.

[Dr Whitehead]

The Minister is making an interesting case for the clause. However, does she accept that it is a particularly egregious example of “first you have it, then you don’t” legislation appearing in consecutive paragraphs? That is to say—a bald statement, as she said—the relevant percentage is 10%, but then the Secretary of State can take that away. Does she have any suggestions as to how one might make that a little less alarming, if she is indeed suggesting that that sort of arrangement needs to be in place?

--- Later in debate ---

[Daniel Zeichner]

The theme continues with this set of amendments because, in exactly the same way as I have just explained, there is a risk of not achieving the desired outcome and ambition of the 25-year environment plan.

The amendment relates to the length of time that the biodiversity gain habitats should be maintained. Our amendment challenges the Government’s suggestion of 30 years. In our view, both schedule 14 and clause 91(2)(b) would allow protected sites potentially to be downgraded or destroyed after 30 years, thereby destroying the ecological gains and carbon storage benefits, and any prospect of those gains and benefits making a long-term impact.

That is essentially the issue: we are talking about the long term. I am sure the Minister will explain in a moment the logic for the Government’s 30-year proposal, but this takes us back to the basic point about how serious and ambitious we are about embedding these changes for the future. There will be little point to the provisions if they do not work in practice. For instance, if someone gets rid of a pond that has been in place for hundreds of years, with all the richness in biodiversity it has developed, and replaces it with another pond nearby, that replacement could be let go after 30 years. Our concern is that the provisions do not give the necessary strong support. The danger is that too short a period could simply see the biodiversity gains swiftly lost. Thirty years sounds like quite a long time, but when one bears in mind that we are already two years down the line from the 25-year environment plan and that politics does not always move at a frightfully great pace, it is not hard to imagine things moving quickly and those gains being quickly lost. If biodiversity gains are to properly contribute to the 25-year environment plan commitments to a nature recovery network and to provide carbon sequestration, which is so crucial to our net zero targets, these areas must be secured and maintained for the long term, because only through that kind of approach will we secure long-term nature recovery.

There really ought to be some binding mechanisms to ensure that the habitat condition target is reached in a timely way. One does not want to be cynical about some of these things, but one can well imagine that people wishing to build, build, build will try to find ways around them and will try, on occasion, to take advantage. The time taken for a habitat to reach its target condition—for example, for woodlands to reach maturity—could be specified in a biodiversity gain plan and included in planning conditions to ensure that it can be enforced. One can see so many possibilities here, and yet, even though the goal is within grasp, it seems that it is being clawed back. Again, I wonder by whom and for what purpose.

Amendment 168 to schedule 14 and amendment 74 to clause 91 would change the provisions by requiring post-development habitat enhancements for the purpose of maintaining biodiversity gains in perpetuity, rather than for 30 years. I have no doubt that the Minister secretly agrees with that; I suspect that she would like to see these things achieved. However, I suspect that she is constrained.

Our amendment 168 would ensure that those habitats are maintained at their target condition. It is interesting to note that that proposal comes not only from the Opposition Benches but is broadly supported. I was delighted to see a similar amendment in this group from the hon. Member for Chatham and Aylesford (Tracey Crouch), although I do not think that it goes quite as far as ours. However, there are clearly Government Members who see the significance and importance of achieving this for the long term. I have to say once again that, if we do not get the commitment we are looking for on amendment 168, we will divide the Committee.

[Dr Whitehead]

I want to add a few thoughts to the excellent introduction to the clause from my hon. Friend the Member for Cambridge. This issue has a considerable relationship to not only biodiversity gains generally but our targets under climate change legislation.

Part of the purpose of a number of the biodiversity gains that may arise as a result of putting percentages on biodiversity gain is not only to make a little gain but to actually sequester what is in that gain. That sequestration should and will count towards the carbon balance, so far as getting to net zero is concerned. We will discuss, when considering a new clause later in Committee, the whole question of what to do about planting trees over a period of time and how the planting of those trees leads, as those trees mature—my hon. Friend alluded to this—to substantial gains in net negative emissions, which are absolutely essential for reaching a net zero target in the future. The assumption would be that the carbon embedded in those trees is permanently placed on the carbon account as a negative input, because it has been effectively sequestered by the trees. That means not only that we can get to net zero, but that the whole question of net negative in the net zero equation is an essential starting point, and without that net negative input, there is no way we will get to net zero by 2050. As we in this House have all agreed, 2050 is the proper target, although we would like net zero to be achieved sooner in this country as far as emissions are concerned.

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[Rebecca Pow]

My point was that what we are introducing in the Bill is much stronger than what was in the 25-year environment plan. That was the point I was making. I will press on—

[Dr Whitehead]

We did not write that.

[Rebecca Pow]

But it was referred to earlier. It is a commitment we have made, and we are strengthening it. Credit should be given where credit is due. A great amount of work has advanced since the launch of that plan, which I went to in 2018 with the then Prime Minister, my right hon. Friend the Member for Maidenhead (Mrs May). We are forging on and doing even more than was promised in that plan.

I welcome the acknowledgment by hon. Members of the importance of long-term maintenance of biodiversity gain sites to ensure that we provide long-lasting benefits for wildlife and communities and for climate change, as was ably referred to by the hon. Member for Southampton, Test. There are, however, practical reasons why we should keep the minimum requirement to a 30-year duration. We need to create the right habitats in the right places for wildlife. Increasing the minimum required duration of maintenance might dissuade key landowners from volunteering their land for gains. Agreements made for perpetuity would also risk creating permanent conditions or obligations to maintain particular types of habitat, when future changes in climate or ecological conditions might make a different type of habitat more suitable. The Bill leaves space for flexibility.

I want to give some more detail about what we term conservation covenants. Any conservation covenant used for net gain would be drafted to secure the carrying out of habitat enhancement works and maintenance of the enhancement for at least 30 years. We would expect responsible bodies to respect that purpose when deciding whether or how to modify or discharge a conservation covenant. They might consider whether any flexibility for landowners would better serve that purpose than retaining the conservation covenant unchanged. I have talked to landowners about this, and it is a point they make, so that has to be respected. The Bill leaves the flexibility for that.

There are also a range of existing protections for habitats, which will not be going away. They could apply to biodiversity gain sites even after the 30 years have expired. These are principally of relevance to off-site habitat enhancements, but would still apply to habitats created within developments. We understand from stakeholders that there may, in some cases, be little difference in funding requirements between the minimum 30-year agreement and a longer agreement.

In cases where it is acceptable to a landowner and would deliver greater biodiversity benefits, we would, of course, encourage longer-term agreements. We would do that initially through guidance. Should further evaluation of the policy show that this is not achieving the right outcomes, the encouragement might be adjusted through policy, the biodiversity metric, which has been in existence for about five years and is currently being updated by Natural England, or further guidance. Any future decision relating to the mechanisms of the encouragement will be made by Government on the basis of evaluation of the biodiversity net gain practice rather than speculation, which, I suggest, is what is being done at the moment.

[Dr Whitehead]

First, I think it should be put on record that suggesting that a Government initiative is better than an amendment being proposed, when the comparison is made between two Government initiatives, one of which is better than the other, really should not stand. We did not write the 25-year environment plan; the Government did. If this improves on the 25-year environment plan, fair enough, but it is not to do with us.

Secondly, in law, 30 years means 30 years. It will be found out whether that was the right thing by encouragement only after 30 years. If someone rips everything up after 30 years, they will find the Government’s encouragement was not as good as it should have been. I am puzzled as to how the Minister will find out whether this is working short of the 30-year period. Would it not be better not to have that 30-year period, to ensure that we do not have to find out the hard way at the end of 30 years, when that change is made in law?

[Rebecca Pow]

I take the point that the hon. Gentleman made earlier. I put on record that I hear what he has said. We will not fall out.

Things will not stop after 30 years. For example, while the agreements made for biodiversity net gain might expire, the created habitats will remain subject to a wide range of protections at that point, as I just said. For example, if a woodland had been created, it would benefit from existing protections for woodland and would then fall into the scope of the felling licence and potential environmental impact assessment regulations for forestry. All those other protections would come into play.

I reiterate that people can voluntarily enter into contracts longer than 30 years if they so wish. I am sure that certain people will want to do that. In light of the reasons I have set out, I ask the hon. Member for Cambridge to withdraw his amendment.

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[Dr Whitehead]

Thank you, Mr Gray. I escalated from a pen to a hand, but I can escalate to a full body motion, if that is acceptable.

I want to add to the admirable exposition of the two amendments by my hon. Friend the Member for Cambridge by drawing attention to amendment 171, which would leave out two lines from paragraph 17 of the proposed new schedule, which has the heading, “Exceptions”. I ask members of the Committee to see what has been done here, because I think it is shocking. At the start of part 2 of the proposed new schedule, conditions for planning permission relating to biodiversity are laid down:

“Every planning permission granted for the development of land in England shall be deemed to have been granted subject to the condition in sub-paragraph (2).”,

which is,

“The condition is that the development may not be begun unless”

there is a biodiversity gain plan. That looks terrific. The casual observer would think, “That’s it sorted out. The biodiversity gain plan has to be in place. That’s what the Bill’s about.”

On turning to paragraph 17, we see that there are some exceptions:

“development for which planning permission is granted…by a development order, or…under section 293A (urgent Crown development)”.

That is arguable, but then we have this sentence:

“development of such other description as the Secretary of State may by regulations specify.”

Put into English, that means that if the Secretary of State introduces a regulation, development is exempted. The whole thing is meaningless from the beginning. All it needs is a regulation, which I presume may well be under the negative procedure, for this to be completely undone.

I know that it is fashionable to blame drafting for these issues, but something as shocking as this has to have had an intention behind it. This cannot arise from someone taking a lax instruction, writing the provision in the bowels of a building, presenting it and no one noticing. How these things are written is instructed by Ministers, who under the Bill can simply remove stuff that the Government do not feel like doing. It refers to all development, not just to some developments—it says “development”. That really is not good enough for a Bill of this kind.

[Rebecca Pow]

I thank hon. Members for their comments. The hon. Member for Cambridge asked a lot of questions, so if I do not cover them all, we will put something in writing because I could not keep up with them all.

Paragraph 17 of the proposed new schedule introduced by schedule 14 sets out when the general biodiversity gain condition does not apply. Sub-paragraph (b) creates a power to exempt specific types of development through regulations. While I welcome the hon. Member’s acknowledgement of the importance of keeping exemptions narrow, there are good reasons to use this power, which amendment 171 seeks to remove, to introduce targeted exemptions for more constrained development types.

The Government will not introduce broad exemptions from delivering biodiversity net gains, which was something the hon. Member specifically asked about. The power will be used to make narrow practical exemptions in order to keep net gain requirements proportionate. Exemptions will ensure that the mandatory requirement is not applied to development on such a small scale that it could be negligible, and I will go on to talk a bit more about that and about no losses in terms of habitat value. Some development will result in negligible losses or degradation of habitat. Examples of such development might include changes or alterations to buildings and house extensions, for example. Applying the 10% targets to such development would not generate significant ecological gains, and the requirement might result in undue process costs for developers and planning authorities alike.

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[The Chair]

There was no sign from the Opposition that the hon. Gentleman wished to discuss Government amendment 222, so it was passed. Therefore, we will move on to Government amendment 223. If you are waiting for votes on Government new clauses 25, 26 and 27, they will come at the appropriate point in the consideration of the Bill—not now.

[Dr Whitehead]

May I seek your guidance, Mr Gray? Presumably, we will want to have a stand part debate on the clause.

[The Chair]

We can perfectly happily do so if that is what people like.

Environment Bill (Sixteenth sitting)

Alan Whitehead Excerpts

Committee stage & Committee Debate: 16th sitting: House of Commons
Tuesday 17th November 2020 Public Bill Committees

[The Chair]

I welcome hon. Members back to line-by-line consideration of the Environment Bill. I particularly welcome the hon. Member for Ynys Môn, who joins our Committee for the first time.

Clause 75

Water resources management plans, drought plans and joint proposals

[Dr Alan Whitehead (Southampton, Test) (Lab)]

I beg to move amendment 9, in clause 75, page 66, line 11, leave out “may” and insert “must”.

We start this morning with an amendment relating to clause 75. It will not be a surprise to any member of the Committee. The suggestion is to replace the word “may” in the line under the heading “Plans and joint proposals: regulations about procedure”. Proposed new section 39F of the Water Industry Act 1991 states:

“The Minister may by regulations make provision about the procedure for preparing and publishing—

(a) a water resources management plan,

(b) a drought plan, and

(c) a joint proposal”.

It seems to the Opposition that it is very important that these things—a management plan, drought plan and joint proposal—are actually published and that provision is made about the procedure for publishing them. That is a central part of this clause.

As we have said in this Committee previously, no aspersions are cast in any direction concerning the present intentions of Ministers, but I remind the Committee that we are making legislation for a very long time and that there might conceivably be circumstances in which Ministers less well inclined towards the process light upon this clause and decide that it is not really so important that regulations are made, hence we think that the word “must” should be inserted in the Bill.

We have pointed on a number of occasions to the lack of “musts” in the Bill. I think that this is one of the more important ones and I hope that the Minister, even if she is not prepared to consider a number of the other “musts”, will have laid by a little store of sympathy for this “must” proposal, because it relates, as I think she would agree, to a very important feature of this clause.

[Fleur Anderson (Putney) (Lab)]

I would like to add to the argument about the fact that this legislation will stand for a long time. Even the fact that clause 75 amends the Water Industry Act 1991 is a reminder to us of how long we expect this legislation to be in force and people to be acting on it accordingly. The Water Industry Act became law 29 years ago and we are still discussing it, and how we will amend it, now. Many years from now, we will still be discussing this legislation, and therefore it is so important to get it right. That is why a “must” instead of a “may” is very important, especially in this clause.

This amendment seeks especially to talk about regional plans. Currently, planning on a regional rather than a company-by-company basis is non-statutory, and so to put this on a statutory basis would be a gear change in terms of water resource management. I would welcome any moves to put regional plans on a statutory footing, but the Government have to be clearer on the circumstances in which the Secretary of State would use the powers and how adherence to the regional plans would be encouraged if it were not clearly set out here. The current drafting is too weak and does not give this clause the teeth that it needs.

By changing “may” to “must”, amendment 9 would tighten up the clause considerably and make it far more effective. It would require the Secretary of State to make provision setting out the procedure for preparing and publishing water resources management plans, drought plans and joint proposals. I would like the Minister, before rejecting the amendment and dismissing it as unnecessary, to answer the following questions. Under what circumstances would the Secretary of State expect to use the powers created by clause 75 to direct water companies to prepare and publish joint proposals—the regional plans? There is a concern that that will not become standard practice if it is not expected. If the powers are not used and regional water resources planning remains on a non-statutory footing—if it is just a “may”—how will the Secretary of State ensure that companies produce water resources management plans that are aligned with the regional plans?

In the absence of a commitment to using the powers created under clause 75 to direct regional planning, can the Minister assure us that the Secretary of State will direct the Department for Environment, Food and Rural Affairs to set out the need for company plans to align fully with regional plans in its strategic policy statement to Ofwat? Otherwise, many who are listening to and reading this debate will remain concerned that companies’ individual plans could deviate from regional plans, affecting our ability to provide sustainable water resources for society in the light of the worrying projections set out in the Environment Agency’s national framework for water resources.

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[Rebecca Pow]

I thank the hon. Gentleman for that point, and lots of companies are already working towards that. We will talk later in more detail about how water companies will work holistically together to deal with the whole water landscape.

In the Bill, the Secretary of State has powers to direct future procedure under statutory legislation if he thinks, for example, that more attention needs to be given to what the hon. Gentleman suggests. There are existing powers in section 37B of the 1991 Act to make regulations for procedural requirements, and those are replaced by new section 39F. The existing powers have already been used by Ministers to make the Water Resources Management Plan Regulations 2007 and the Drought Plan Regulations 2005.

Water companies’ plans are revised every five years. The plans are prepared at different times within their own five-year cycles. When exercising these powers, Ministers in England therefore need to be flexible and mindful of when to introduce the new planning requirements, so as not to have unnecessary impacts on the preparation of water companies’ plans, many of which are under way. I therefore ask the hon. Gentleman to withdraw the amendment.

[Dr Whitehead]

I think the Minister knows what my answer is going to be. The hon. Member for South Cambridgeshire made a fair point about what would happen if we put in every “must” in every place in the Bill, and how that might constrain the agencies that are responsible for carrying out its business, but that is not what the Opposition has done with our repeated suggestions for the inclusion of “mays” and “musts”.

We agree with the hon. Gentleman that it is not appropriate for an agency to be constrained in that way if, for example, it may decide to carry out an action relating to an investigation or look at the extent to which it ought to do certain things. In that case, it is not appropriate to use “must”, and “may” is perfectly appropriate. There are, however, other circumstances where it is clear that an agency, or indeed the Minister, ought to do something.

In his analysis, the hon. Member for South Cambridgeshire made reference to parents and children, and I would say that this is on the parents’ side. It is a “must” in the same way as a parent must not leave their child on a bare hillside for the evening to see whether they survive. That is the sort of “must” this is, rather than a stipulation that a parent or a child must do certain things. I would put the Minister in the role of the parent, as far as this process is concerned. If the Minister is, in a sense, the parent of these activities, the Minister ought to act like a good parent. If there is a suggestion in the Bill that the Minister “may” not, that should be recognised.

In answer to the Minister’s question, I will not press this amendment to a Division. I know that this is becoming a little formulaic, but the Minister may want to reflect on whether drafting amendments need to be made at certain places in the Bill, either now or at a future date, bearing in mind that this is not a spray-paint job as far as “mays” and “musts” are concerned. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Dr Alan Whitehead]

I beg to move amendment 130, in clause 75, page 66, line 22, at end insert

“including persons or bodies representing the interests of those likely to be affected.”

I will give the game away straight away by saying that this is a probing amendment, as I am sure the Minister will be pleased to learn, and we seek her comments on it. As my hon. Friend the Member for Putney said, the 1991 Act has been with us for a while. Does the Minister think that bodies that represent those who are likely to be affected by a water resources proposal or a drought plan should be included in the process of preparing and publishing regulations? There is a distinction to be made between the Government deciding to make a plan, and those who would be particularly affected by that plan—for example, the hon. Members who would be affected by a drought plan in Cambridgeshire—having input into the process. There is a relationship between a high-level plan and the reality of any changes on the ground, and it is important to have both perspectives.

That is the reason for this amendment, and the Minister may wish to comment on whether she agrees with the principle behind it, even if the wording is not quite right. I would particularly like to hear whether she is signed up to the idea that I have set out and, if so, whether there are other ways of ensuring that the drawing up of these plans and proposals is a two-way process.

[Fleur Anderson]

I would like to unpack the amendment slightly more and highlight some areas that may be affected by the Government’s proposals. We would be very interested to hear from the Minister how this Bill will be enacted on the ground after it has progressed through both Houses.

Consultation is key during any planned preparation. The plans to clean up our water across the country are essential and, unless they are done correctly and with the full engagement of all the representative bodies, they will not work. If that happens, the current plateauing of environmental protection, which many people find very concerning, will continue.

The removal of section 37A(8) from the Water Industry Act 1991will remove a list of other bodies. The Act states:

“Before preparing its water resources management plan…the water undertaker shall consult”—

the use of the word “shall” is interesting. Following on from the comments of the hon. Member for South Cambridgeshire, I think that our job in this Bill is to say what is within the OEP’s remit, what must happen and what the OEP, with its flexibility, can decide should happen. We need to set that framework, and an essential part of that is engagement with all the right agencies. The proposed deletion will remove the Environment Agency; Natural Resources Wales; the Water Services Regulation Authority, or Ofwat; the Secretary of State; and any licensed water supplier, as listed in the 1991 Act. These bodies will not be included in this Bill unless we add the text of the amendment, which is, I think, very reasonable,

“including persons or bodies representing the interests of those likely to be affected”.

I do not think that that is overly restrictive, because it would give the OEP the ability to decide who those persons or bodies are. It does, though, say that they must be consulted. Has the Minister considered how to ensure that the new provisions on the preparation of plans by water undertakers will retain stakeholder engagement requirements? Does the Minister believe that the proposals are sufficient to ensure that the Environment Agency, in particular, is fully engaged in plan development? Its involvement is crucial to ensure a high level of environmental scrutiny of water resources options. That is essential for both the working of the Environment Agency and the effectiveness of any plans.

The Minister may suggest that this is dealt with through other requirements such as the customer challenge groups. However, those arrangements are typically extremely narrow and do not enable the wide engagement of the stakeholder that is necessary for the best plans—world-leading plans. Amendment 30 would ensure that consultation rights for stakeholders—

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[Dr Whitehead]

I have, as a result of this debate, begun to feel that this is less of a probing amendment than I initially thought. My hon. Friend the Member for Putney made an important point, which I neglected to include in my contribution. The Water Industry Act 1991 included these things. At that time, there were specifications about agencies and bodies that should be consulted and involved in the plans. That has all been swept away.

While the Minister makes the possibly important point about the phrase “persons to be consulted” in proposed new section 37F(3), that appears to be a rather feeble replacement for what was firmly in the previous piece of legislation. At the very least, I would like some assurance. The Minister says that the phrase “persons to be consulted” could be interpreted as persons in the collective. By a transfer of reasoning, we might therefore get to the Environment Agency and various other people in the end. I would like the Minister to actually shorten that course and say, “Yes, it will,” so far as the Bill is concerned.

[Rebecca Pow]

The hon. Gentleman makes a good point, but just for clarity, we can make regulations to specify what persons or bodies must be consulted during the plan preparations, and we plan to use that power. I just wanted to get that on the record.

[Dr Whitehead]

I think we may be getting there. When the Minister says, “we can make regulations”, is she saying that the Government will make regulations that effectively restore that arrangement, in terms of persons, by a regulatory route, as I was trying to tease out? It would be helpful if the Minister said that it is very likely that regulations will come about that include a better definition of persons, so that those bodies can effectively be brought back into the process in a way that the Bill seems to have neglected to do.

[The Chair]

Does the hon. Gentleman wish to withdraw the amendment?

[Dr Whitehead]

The hon. Gentleman would like to encourage the Minister to say something else on this.

[Rebecca Pow]

I will intervene one more time, just for clarity. As I said, we made the Water Resources Management Plan Regulations 2007 and the Drought Plan Regulations 2005, which demonstrates that we have already done something like what the hon. Gentleman asks for. I reiterate that we can make regulations to specify what persons or bodies must be consulted during plan preparations, and we plan to use that power.

[Dr Whitehead]

I thank the Minister for that. That is 65% of the way there. On balance, I am happy to withdraw the amendment. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Amendments made: 47, in clause 75, page 67, line 20, leave out “the Assembly” and insert “Senedd Cymru”.

See Amendment 28.

Amendment 48, in clause 75, page 67, line 32, leave out “the Assembly” and insert “Senedd Cymru”.—(Rebecca Pow.)

See Amendment 28.

Clause 75, as amended, ordered to stand part of the Bill.

Clause 76

Drainage and sewerage management plans

[Richard Graham (Gloucester) (Con)]

I beg to move amendment 200, in clause 76, page 68, line 17, at end insert—

“(ca) the water quality and impact of the discharges of the undertaker’s drainage system and sewerage system,”.

This is a probing amendment, tabled in the name of my right hon. Friend the Member for Ludlow (Philip Dunne), myself and others. The last amendment I tabled proposed to change one word and add one letter to the Bill’s proposed environmental improvement plans. This probing amendment adds 16 words to a subsection on drainage and sewerage management plans. Both amendments have in common the shared interests of our environment and us as beneficiaries of that environment.

Amendment 200 focuses on drainage and sewerage management plans. It is an uncomfortable fact for us all that a huge amount of raw sewage is still discharged into our coasts and waterways—200,000 times in the last year, with 3,000 discharges in UK coastal waters between May and September—all of which threatens the quality of the water itself and water users. It is for that reason that 40,000 people signed a petition to end sewage pollution. My right hon. Friend the Member for Ludlow was motivated to initiate a private Member’s Bill, which will be heard in the House in due course, and to table this amendment to the Environment Bill.

Surely it is the aim of all of us to stop discharges into rivers, lakes and waterways, as well as into our sea, and to raise our current rating within Europe—although we are leaving the European Union, we are still a geographical part of Europe—from 25th out of 30 for coastal water quality. Only 16% of our waterways meet good ecological status.

Why does that matter for all of us, as users? Ultimately, there are health risks—gastroenteritis, ear, nose and throat illnesses, and apparently even, although I have not seen evidence, hepatitis and E. coli. Those of us who enjoy wild water swimming—in the River Wye, for example, on the Gloucestershire-Herefordshire border—will know that there are times when agricultural companies are pumping discharge into the water and damaging its quality and the experience, particularly for the young.

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As it stands, the Bill has much to recommend it, but this particular omission is one that could be put right relatively straightforwardly. I therefore look forward to hearing the Government’s response.

[Dr Whitehead]

The hon. Member for Gloucester has made a powerful speech in support of the amendment, covering many points that I would have raised had he not done so. The Opposition would have tabled an amendment on this subject had amendment 200 not appeared. We did not, because we saw that a substantial number of Members from both sides of the House had put their names to the amendment, which I think adds to its gravity. Frankly, we felt that if we had proposed a separate but similar amendment, it might have decreased the chances of this one being made, so we kept the position as it was. The one point I would disagree with the hon. Gentleman on is that the amendment should not be probing; it should be a serious attempt, with cross-party support, to get a provision into the Bill that will undoubtedly be to the benefit of the natural environment and its users as a result of changes in water companies’ activities.

I want to reinforce what the hon. Gentleman had to say about discharges of sewage and similar activities that have taken place over a number of years. He is right to state that there were more than 200,000 releases of raw sewage into rivers last year. That number slightly underestimates the actual effect of the releases, since some occurred over an extended period rather than being instant. We should think about why that happens.

These are not accidents; they are provisions within the operating arrangements for water companies which allow the occasional release of raw sewage into watercourses. All water companies have an emergency release provision in their operations. They have a system of stop valves that normally separate the sewage from the water, but if the system is so suffused with water at certain points—during a heavy storm, for example—that it cannot cope, those valves are effectively released; the two flows are then mingled. That is the point at which raw sewage may be released into watercourses.

Water companies say that, generally speaking, the dilution of the sewage is such that it does not make a great deal of difference, particularly in heavy storms and similar conditions. That is partly overthrown by the fact that discharges sometimes take place over a substantial period and are not simply brief discharges into rivers at the height of a crisis like a storm. I do not think that anybody would say that in periods of severe crisis for a water company, those sorts of provisions should be removed, but that provision far exceeds what we might expect.

The discharge of spills came to an incredible 1.53 million hours across the nine English water companies last year. As I mentioned, a lot of the spills are not brief. The water companies could introduce procedures that would ensure that they were brief by improving how they separate out water and sewage, and ensuring that those flows can be combined only in the most critical circumstances. It is evident from what we know about those discharges that that is not the case. This is being used as a safety valve by water companies in many instances, rather than as an emergency, last-stop procedure. It is certainly within the companies’ ability to ensure that those safety valves become last-gasp emergency procedures just by improving their procedures to ensure that arrangements for the separation of water are maintained to a higher standard.

As a shadow Minister, I would say that, wouldn’t I? However, it is perhaps not surprising, given that this concern is shared pretty much across the House, that other people have said much the same thing. For example, I believe the Minister met chief executives of the 15 water companies in September, at which point she called on them to take further action to protect the environment, reduce leakage and safeguard water supply. She said that

“we discussed a number of issues I feel strongly about, including storm overflows, and how we can work together to see much more ambitious improvements. This country’s green recovery from coronavirus can only happen if water companies step up and play their part.”

I could not have put it better, and the Minister indeed put it very well.

The hon. Member for Gloucester, who made an excellent contribution, reminded us that the amendment is supported, and was substantially crafted, by the Chair of the Environmental Audit Committee, the right hon. Member for Ludlow. Other hon. Members pointed out the concerns on this issue in their constituencies and why action needs to be taken. The entire Opposition think that this is a good idea and wish to pursue it, and of course the Minister has made admirable comments on how water companies need to step up their activity, particularly on storm overflows, to get things organised.

Basically, what is there not to like about the amendment, and why can it not just be instantly put into the Bill? It will not detract from anything; it will simply add a layer of urgency to something that we all think needs to be done, which surely is what Bills should be about. They should frame action in such a way that entreaties and suggestions are added to by a piece of legislation that says, “Go and do this over a period of time.”

We not think that this should be seen as a probing amendment. That is a very minor disagreement between the Opposition and the hon. Member for Gloucester, who I appreciate may have suggested that it should be deemed a probing amendment out of sensibility for his own side’s manoeuvrability, shall we say, on this issue. In his heart, I think, he would be absolutely behind the idea that it ought to go in the Bill straight away. I sense that very strongly from the vibrations that are coming across the room.

--- Later in debate ---

[Rebecca Pow]

My hon. Friend is doing absolutely the right thing in checking up on the issues. I have been doing that myself, in fairness. He mentions the EA. As he said, Emma Howard Boyd, the chair, made it clear that much more is expected of water companies, which includes developing, publishing and implementing specific plans by the end of this year, to reduce pollution incidents. The Environment Agency is on the case. Following my meeting, the Secretary of State is meeting with water companies again very shortly. I repeat that “relevant environmental risks” will include sewer overflows and water quality; I said that just now and I hope my hon. Friend the Member for Gloucester was listening. Once that has been established as a risk, it would be very hard for anyone to argue in the future that it was not a risk. That addresses the point made by the hon. Member for Newport West, and I reiterate that point.

[Dr Whitehead]

The Minister talks about checks and balances, but I am sure she will know that, as far as the checks and balances relating to storm overflows are concerned, more than 60 discharges a year should trigger an investigation by the Environment Agency. Those storm overflows have been released hundreds of times per year by each water company. The Environment Agency relies on water companies to self-monitor their discharges, so the check and balance does not work as well as it should. Does the Minister think that arrangement is sufficient to keep those discharges under control?

[Rebecca Pow]

I thank the hon. Member for raising that important point; I just want to talk a little bit about the Environment Agency. They are actually part-way through a programme to improve the management of storm overflows. Event duration monitoring gadgets are being installed on the vast majority of combined inland and coastal sewer overflows, and will provide data for the duration and frequency of storm spills by 2025. Approximately 13,000 of the 15,000 overflows will receive this event duration monitoring, so it will make a difference—I am convinced of that. We do, however, accept that there is a great deal more to do.

Let me clarify how important I think the issue is; we do not want to sit around waiting, but to get on and do something about it. In addition to the Environment Bill and the ongoing discussions around making it as strong as possible, I have set up a new storm overflows taskforce to make rapid progress in addressing the volumes of sewage discharge into our rivers. This has been done at speed and very recently, when all of this “stuff”, as they call it, came to my attention. I would like to thank everyone involved for moving so fast on this. I will set a long-term goal on the storm overflows for sewerage undertakers, which I will talk about in more detail later, but the work on that needs to start now. The taskforce is developing actions that will increase water company investment to tackle storm overflows in order to accelerate our progress.

--- Later in debate ---

See Amendment 28.

[Dr Whitehead]

I beg to move amendment 199, in clause 76, page 70, line 4, leave out “may” and insert “must”.

When a minister chooses to make a drainage and sewerage management plan, this amendment obliges them to consult on it.

Yes, this is another amendment. By the way, I thought that last bit was really exciting. I am sorry that hon. Members did not vote our way on amendment 200 this morning, but I appreciate the effort that everyone put it to make it almost get there.

Amendment 199 relates to the amendments to the Water Industry Act 1991. This is about how regulations “may” make provision about consultation, which is a particularly weak “may”. I would have thought that consultation is an essential element of the process. In particular, we are talking about consultation to be carried out by sewerage undertakers—that is, water companies—who are required by regulation to make provision about the person to be consulted, the frequency and timing of the consultation and the publication of statements.

There is a pretty tight requirement on water companies to be clear about what their provision is, except they do not have to do it. That seems to me to be a suggestion that holds the entire subsection. There is quite a fierce thing in this subsection about consultation. This is a good thing. It covers not just consultation, but who it should be carried out by—the sewerage undertakers—as well as instructions on who should be consulted and so on. It is all spoiled by the “may” at the beginning of the sentence. I think this is another important “must”, which ought to go into the Bill. Again, I will not push the amendment to a Division, but I hope the Minister will take careful note of our strong feelings on the issue and will put it in the box of reconsiderations for when she gets around to deciding whether there should be drafting amendments to the Bill in the future.

[Fleur Anderson]

I welcome the Minister’s earlier comments about taking action on sewage pollution, of which this is an additional part. I welcome the aims of the clause, and I believe it is vital that a strategic approach is taken to waste water management. However, I have a couple of issues with it that I would like to point out.

Sewage pollution is a very important issue for constituents across the country, including in my constituency of Putney, next to the beautiful River Thames, where we are extremely concerned about it. Some 39 million tonnes of sewage is dumped into the River Thames every year, with an estimated 50 epic dumps of pollution. The Tideway project is making great headway—it is making amazing progress, and I commend it. It will result in a real difference being made. However, there are still extreme concerns. One is about the use of the term “sewerage” in the clause, whereas the industry would prefer to use the term “wastewater”. Wastewater is a much larger section of domestic, industrial, commercial and agricultural production, of which sewerage is only a small subsection.

I slightly digress from the amendment—

--- Later in debate ---

Sewerage undertakers are currently developing the first tranche of plans on a non-statutory basis to a five-year cycle. Ministers in England, when exercising the powers, will therefore be mindful of when to introduce the procedural requirements so as not to cause unnecessary disruption—lots of them are in the middle of those, and a great deal of work has gone on—to the development of sewerage undertaker plans. On those grounds, I ask the hon. Member for Southampton, Test to withdraw his amendment.

[Dr Whitehead]

I thank the Minister for what she has said. She has gone some way towards assuring us on this matter, and I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Dr Whitehead]

I beg to move amendment 131, in clause 76, page 70, line 6, at end insert

“including persons or bodies representing the interests of those likely to be affected”.

This amendment is very similar to amendment 130. It adds the same wording to the end of this clause to ensure that persons or bodies representing the interests of those likely to be affected are included. We have effectively discussed this, so I am not very excited about this amendment. [Hon. Members: “Shame!”] By the way, I ought to assure the Minister that, although I am probably among the least excitable Members of this House, I do get excited about quite a few things; I draw a distinction between those two uses of language.

I think that the Minister will probably respond to this amendment in the same way that she did when we tabled a similar amendment to the end of a previous clause, so I do not think that we need detain ourselves very long, other than to say that we still think that such an amendment is a good idea.

[Rebecca Pow]

I thank the hon. Member for the amendment and his brevity. Clause 76 enables Ministers to set out in regulations which bodies are to be consulted on the preparation of drainage and sewerage management plans—a process that will be strengthened by the involvement of a range of stakeholders. We intend to make those regulations in England to include those persons or bodies representing the interests of those likely to be affected, including representative bodies such as the Consumer Council for Water.

I went into some detail about the meaning of the word “persons” previously, so I refer the hon. Member to that. As I also mentioned, this was done in a similar way when the existing water resources management regulatory making powers were used by Ministers in making the Water Resources Management Plan Regulations 2007. The regulations set out a long list of persons to be consulted by undertakers. I hope, therefore, that he will see that the amendment is unnecessary, and I respectfully ask him to kindly withdraw it.

[Dr Whitehead]

In the light of that answer, which I had anticipated, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Amendments made: 51, in clause 76, page 70, line 38, leave out “the Assembly” and insert “Senedd Cymru”.

Amendment 52, in clause 76, page 71, line 6, leave out “the Assembly” and insert “Senedd Cymru”. —(Rebecca Pow.)

See Amendment 28.

Question proposed, That the clause, as amended, stand part of the Bill.

[Dr Whitehead]

I will not detain the Committee at great length on this particular clause stand part debate, because I just want to raise an issue that somewhat puzzles me about the wording of the clause.

The Minister alluded to the source of my puzzlement a moment ago in her response to the previous debate. As hon. Members can see, the title of the clause is

“Drainage and sewerage management plans”.

The clause refers repeatedly to such plans, but what we should be talking about are not Drainage and sewerage management plans but drainage and waste water management plans.

Some hon. Members may think there is not much of a distinction, but there is quite a substantial distinction, in that sewerage and waste water are not the same things. Waste water includes all the sources of waste water coming into a particular riverine or estuarial area, which may have a number of sources that are not sewerage-based. Therefore, the definition of these plans as drainage and sewerage management plans narrows what they might consist of—not only that, but the definition narrows who might be involved in these particular plans. It narrows it down to water companies, whereas a number of other companies are indeed involved in waste water management and properly ought to be within those plans, to make a comprehensive arrangement as far as waste water is concerned. What is a further source of puzzlement is that the Department and industry have actually worked on such plans for many years, and they are called drainage and waste water management plans.

The Minister may say, as she did a moment ago, that in the Water Industry Act 1991 the words “drainage and sewerage management” effectively mean a wider issue as far as waste water is concerned, but of course the wording in clause 76 is not what was in the 1991 Act but is actually an amendment to that Act. It would have been easily possible, as far as the construction of the Bill is concerned, to include the words “sewerage and waste water management” in the Bill, with no cost to anybody—no additional amendments; nothing—whereas the less than adequate wording in the 1991 Act has been retained for the purpose of these amendments.

I wondered why that was the case. Is it an omission or is it deliberate?  Other than the rather obscure reference to the 1991 Act, why does not the Bill state what plans the Department has and what the plans should consist of if they are properly to take account of what “waste water” defines and accommodates?

[Rebecca Pow]

How quickly, in the space of 10 minutes, we have gone from excitement to puzzlement. I hope I can, however, assuage some of the puzzlement.

Clause 76 amends the Water Industry Act 1991 to place drainage and sewerage management plans on a statutory footing to match the status of water resource management plans. The provisions are modelled closely on the existing approach to water resource management plans.

I shall deal with the interesting point about the distinction between sewerage and waste water. The clause amends the 1991 Act, which defines the term “sewerage system” in a way that covers all relevant aspects of waste water, so we have used that wording. This includes facilities to empty public sewers and other facilities such as waste water treatment works and pumping stations.

The term “waste water” is not defined in the 1991 Act. The statutory name is not intended to dictate what the water industry chooses to call the plans as part of its daily operations; it might have some other casual term for it. Drainage and sewerage planning is the only key planning process without a formal statutory status in the water sector. Placing plans on a statutory basis will ensure a more robust planning and investment process to meet future needs, including housing.

Statutory plans will also allow waste water network capacity to be fully assessed and encourage sewerage companies to develop collaborative solutions with local authorities and others who have responsibility for parts of the drainage system. They should also sit with planning for population and economic growth and therefore help to deliver improved resilience in sewerage and drainage sources over the long term.

There is strong cross-sectoral support for the measure. When we consulted publicly on making plans statutory, over three quarters of respondents supported the proposal. The statutory production of the plans will clearly demonstrate how a sewerage undertaker intends to fulfil its duty under the Act to provide, improve and extend the public sewerage system to ensure that its area is effectively drained. A statutory plan will help to set out the actions needed to address the risks that some assess that might pose to the environment or customers.

[Dr Whitehead]

I think the Minister should accept that I am one of the least puzzled Members of the House, but I do admit to puzzlement sometimes. On this occasion, my puzzlement has not been assuaged. The Minister is talking about how good these plans could be, but that does not take us much further in terms of why the wording is as it is when it would have been so easy to put it right when the Bill was introduced. I take on board the Minister’s assurances that, in practice, the word “sewerage” can be used by reference back to the bits of the 1991 Act that have not been amended by this legislation to expand its remit, but it would have been easier to get it right first time round, but I shall not pursue this. It can go into the Minister’s box of things to think about should she wish to clarify this part of the Bill any further.

Question put and agreed to.

Clause 76, as amended, accordingly ordered to stand part of the Bill.

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Water abstraction: no compensation for certain licence modifications

[Dr Whitehead]

I beg to move amendment 132, in clause 80, page 78, line 1, leave out “2028” and insert “2021”

[The Chair]

With this it will be convenient to discuss the following:

Amendment 133, in clause 80, page 78, line 34, leave out “2028” and insert “2021”.

Amendment 134, in clause 80, page 79, line 7, leave out “2028” and insert “2021”.

--- Later in debate ---

[Dr Whitehead]

These amendments all make the same point about there being no compensation for certain licence modifications in water abstraction. Should licences be modified as a result of environmental considerations, especially with the uprating of environmental legislation, water companies and other organisations will have to undertake additional actions to ensure that their licences are adhered to, but they will not receive compensation for those modifications. That is all well and good, except when those licences come to be revoked or varied, in pursuit of a direction under a section of the Water Act.

The no compensation clause comes in on 1 January 2028, so it could be argued that that gives the water undertakings a reasonable period to adjust to the changes, but it may have the reverse effect of what is intended. If companies were to make changes that might need to be undertaken before 2028, they would get compensation. I am not sure whether the clause requires a period of notice for changes caused by increased environmental protection—it is reasonable to give water companies time to adapt—or is it a device that allows water companies to get some money for environmental changes that they should be doing anyway, if they do them before 2028? It is a pretty long run-in for changes. I ask the Minister—and this goes for all these amendments, because they all seek to change the date from 2028 to 2021—whether she thinks that the 2028 date is satisfactory in terms of a run-in for the water companies to make their changes.

If they make the necessary changes before 2028, would they be protected from a legal requirement to enter into and discuss compensation? I would suggest that that is less than satisfactory. The Minister faces a choice this morning on which way she jumps; or perhaps, with great dexterity, she could jump in both directions.

Not only is there potential confusion about the precise intention of this clause, but the 2028 date itself seems to be excessively generous by any measure. If the Minister is not able to at least give us an indication that that date might be considered for foreshortening, we may wish to divide the Committee.

[Fleur Anderson]

I would like to speak in support of the concerns raised by my hon. Friend the shadow Minister about the long deadlines of this Bill, which would be rectified by amendments 132, 133 and 134.

Clause 80 amends the Water Resources Act 1991 to improve the way in which the abstraction is managed. This additional Environment Agency power, to act on licensing that causes environmental harm, is welcome. However, the timescale proposed in the Bill is too long, as the changes will apply to licenses revoked or varied on or after January 2028. With compensation remaining payable on any license changes opposed by the agency before that time, budgetary constraints will significantly limit its scope to act, which cannot be the aim of this Bill.

The current timescale does not appear to fully grasp the severity and immediacy of the problems facing UK waterways and the poor performance of water companies to date. Four out of nine companies assessed by the Environment Agency require improvement. We cannot wait until 2028 to start revoking licenses and take action, when there is clearly systemic underperformance in the water industry.

Moreover, water companies in England were responsible for their worst ever levels of environmental pollution in the five years up to 2019, leading to condemnation from Ministers and the Environment Agency. In the agency’s annual assessment of the nine privatised water and sewage companies, its chair, Emma Howard Boyd, said that their performance continued to be unacceptable.

Unsustainable abstraction can do serious environmental damage, particularly by changing the natural flow regime. This results in lower flows and reduced water levels which, in turn, may limit ecological health and result in changes and reductions of river flows and groundwater levels. This is about far more than just hosepipe bans.

The Government’s own analysis has shown that 5% of surface water bodies and 15% of groundwater bodies are at risk from increasing water use by current license holders, which could damage the environment. With the Environment Agency recently warning that in 25 years, England’s water supply may no longer meet demand, we will have to clamp down on over-abstraction now. Before becoming an MP, I worked for the aid agency WaterAid, where I saw the result of over-abstraction and how damaging that was for communities around the world. We do not want to face that here.

Abstracters are unlikely to give up these abstraction rights voluntarily and forfeit potential compensation payments. This means that over-abstracted rivers and groundwater-dependent habitats will continue to suffer for at least another eight years under the clauses of this Bill, putting threatened habitats and public water supplies at risk. Further clarification could then ensure that the new date would not impose unrealistic time pressures on water abstractors. 

Variations to licences could then be made, setting out a reasonable compliance period for changes to be put in place before the abstractor would be in breach of the new conditions. That would give fair notice to abstractors, which I understand is a concern for the Minister and is the original purpose of the 2028 date, while also enabling swift action on the mounting environmental harm caused by damaging abstraction. It would put environmental risks in the driving seat, not the concerns of water companies, which is what the Bill does at the moment.

Does the Minister agree that without bringing forward the date from which environmentally damaging abstraction licences could be amended without compensation, we are unlikely to achieve the existing Government targets for the health of the water environment, which require us to bring our waters into good status by 2027 at the latest? Bringing the date forward to 2021 will allow action to be taken within the final cycle of the river basin management plans for 2021 to 2027, and allow us to reduce abstraction damage in line with Government targets set under the water environmental regulations of 2017. The dates need to add up.

In its report, “Water supply and demand management”, published in July, the Public Accounts Committee advised:

“The Environment Agency should write…within three months setting out clear objectives, and its planned mitigation actions and associated timescales for eliminating environmental damage from over-abstraction”.

The Committee wants immediate action and we should, too. Has the Environment Agency yet been able to outline how it will eliminate the environmental damage in line with statutory deadlines, given that this power will not come into effect until after those deadlines have passed?

I support these amendments, in order to put the Government’s own targets in line with each other and make sure that we take action against over-abstraction as urgently as necessary.

--- Later in debate ---

I trust that hon. Members now understand the context for selection of the implementation date, and the ongoing action being taken by Government to ensure that changes to ensure sustainable abstraction are already being implemented. I therefore ask the hon. Member for Southampton, Test to withdraw his amendment.

[Dr Whitehead]

I would have thought that if measures to sort out sustainable abstraction were already being taken, that would be a compelling argument for bringing the date forward from 2028. It is, after all, a longer period than the second world war. I am not convinced by the Minister’s arguments, and on the basis of that date we would like to pursue a Division.

Question put, That the amendment be made.

--- Later in debate ---

Water quality: powers of Secretary of State

[Dr Whitehead]

I beg to move amendment 135, in clause 81, page 80, line 28, leave out subsection (9) and insert—

“(9) Regulations under this section are subject to the super- affirmative resolution procedure.

(10) In this subsection, ‘super-affirmative resolution procedure’ has the same meaning as it does in Section 18 of the Legislative and Regulatory Reform Act 2006.”

I will not detain the Committee for long. Our amendment suggests that instead of regulations under this section being subject to the negative procedure, they should be subject to the super-affirmative procedure. There is a real difference between the two because, as hon. Members will know, the negative procedure for secondary legislation requires merely that the legislation be laid before the House, and if no one objects to it within 21 days, it automatically becomes law. The affirmative procedure, on the other hand, means that under normal circumstances, the House is entitled to a debate on the legislation, in which the Minister is required to take part, at least to air the reasons behind the introduction of the regulations.

The affirmative procedure is potentially an important protection for Parliament to hear properly what is happening with secondary legislation. The super-affirmative procedure guarantees a 90-minute maximum debate on a piece of secondary legislation, and that is the procedure that we would prefer for this clause. We will not press the amendment to a vote, but we would be grateful if the Minister reflected briefly on why she thinks the negative procedure is the right way to go.

[Fleur Anderson]

Although there is some justification for a power to make technical updates to regulations, as my hon. Friend the shadow Minister has set out, the clause could provide a licence for the Secretary of State to weaken, via secondary legislation, the standards of our waters, and their chemical status in particular. Secondary legislation has caused a huge amount of division between the Opposition and the Government, as we have asked that much more of it be put into primary legislation. If there is more secondary legislation, and “may” does not become “must”, it is really important that it is debated under the super-affirmative procedure.

That is particularly worrying in the light of Sir James Bevan’s speech, which suggested possible reform of the way in which the status of our water is considered. What is behind that suggestion? The last thing we need now is a regression of water quality standards. According to data released by the Environment Agency last month, not a single lake or river in England that has been recently tested has achieved a good chemical status. We are experiencing a five-year high for environmental pollution by the water industry.

Stakeholder concerns about the unmitigated power in the clause would be unlikely to evaporate if there were a commitment to non-regression of environmental standards. Given the public support for environmental protection, which I am sure the Committee will acknowledge, why are the Government reluctant to provide assurances and to agree to the amendment? That goes to the heart of many of the issues at the centre of the Bill. Time and again, we have heard assurances of non-regression, but the Government have so far avoided every single opportunity to put those promises into statute. That persistent refusal makes us all highly suspicious.

At the heart of the water framework directive is the principle that the water environment is a system and that all its parts need to be in good working order for it to operate effectively. That principle remains true. The clarity of the one in, one out rule should not be abandoned, and any weakening of chemical standards would be a backward step in the light of growing public concern about water pollution and the new data showing the extent of water quality failures across England.

I urge the Committee to support the amendment, which goes some way towards addressing that significant risk, and would ensure that any changes to water quality regulations would be subject not to the negative procedure, as the Bill currently states, but to the super-affirmative procedure—as a new MP, I had to go and look it up and have learned a lot about it—as defined in section 18 of the Legislative and Regulatory Reform Act 2006. That would give stakeholders the right to input into any water quality regulation changes, including UKTAG, the UK technical advisory group that currently advises on standards—

Environment Bill (Fifteenth sitting)

Alan Whitehead Excerpts

Committee stage & Committee Debate: 15th sitting: House of Commons
Thursday 12th November 2020 Public Bill Committees

[Dr Alan Whitehead (Southampton, Test) (Lab)]

As hon. Members will recall, before we adjourned we discussed an amendment that sought to place a slightly different emphasis on elements of the schedule; we wanted to emphasise the question of single use in general, rather than just single-use plastic. The argument is that a lot of things other than plastic are single-use.

The idea is not what the hon. Member for South Cambridgeshire suggested in his intervention—that we would tax everything that was single-use, which would clearly be absurd. Indeed, one would not want to tax some plastic single-use items, given that they may be appropriate in a number of circumstances. That is why, on this occasion, the use of the word “may” is correct.

Schedule 9, it appears, has been drawn narrowly in respect of plastic and therefore narrowly also in terms of single use. To emphasise that, the schedule is actually headed “Charges for single use plastic items”, not “Charges for single use items that may be plastic”. That is unfortunate because the issue is not just about manufacturers seeking to get round a ban or restriction on single-use plastic items by making single-use items from different materials; it is that the whole throwaway culture is based on single-use items in general, which may or may not be plastic.

As those who have had the pleasure of dining under covid restrictions in this building, a couple of floors down, will know, a number of throwaway items are put forward for our use, including knife, fork and spoon sets. Interestingly, those sets are sometimes made of bamboo and sometimes of plastic; that seems to depend on which night people turn up for what meal. The principle is exactly the same: people are supposed to put the knife, fork and spoon set in the bin afterwards. In the particular instance of covid-19 restrictions, I fully understand why. However, although it is the norm in a number of catering establishments to supply a knife, fork and spoon set that cannot be washed and used again, those knife, fork and spoon sets are not necessarily only plastic. They can be made of all sorts of other things; the principle is that something is being made available that is supposed to be thrown away and not used again, when it could very easily be used again, with fairly minor alterations to the spec and how things are done, thereby saving a great deal of resource and upholding the principles of the circular economy.

That is what we were trying to get at in amendment 182. There are clearly various things that fit in that category and that we as a society could do a great deal to sort out, so as not to bring virgin materials into the economy when we do not need to and to circularise things so that they go round the economy. Making the best use of those items when we can is something that should be agreed to. Indeed, we had a debate a little while ago in which the Minister extolled the virtues of recyclable nappies. Of course, a recyclable nappy is what used to be known as a nappy. That is what people did, because Pampers and all the rest of it were not available in those days. However, we now have a culture where the default is to buy a bag of Pampers and get through those, rather than even thinking about using recyclable nappies. Indeed, they are quite difficult to get hold of.

Recyclable or non-recyclable nappies need not necessarily be made of plastic; they could be made of various things. However, the principle is about moving from nappies that are used in one way to those used by default in another way, with the result—which we know, and which I am sure comes across the Minister’s desk every day—that nappies are now a substantial part of the waste stream and potentially part of fatbergs and various other things in our sewers, because of the change over time from multiple to single use.

We do not oppose the schedule, but can the Minister see circumstances in which discouraging but not necessarily removing single use could be incorporated into the schedule or introduced in further regulations, or does she think that that is it for the debate on single-use items? I cannot believe that it is; we need to take it further than just plastic items. I seek suggestions or an understanding for how we can best advance the debate, if not through this schedule, then maybe somewhere else.

In conclusion, I know personally that a number of items—some of which apply to me—including certain medical things, such as sealed eye drops, absolutely need to continue to be plastic single-use items, and it would be inappropriate were it otherwise. My view is not that we should remove all plastic single-use items—or use only single-use items—but we all ought to be seeking to give ourselves the possibility of ensuring between us that the most circularity is achieved. I hope the Minister can give us some guidance and assurances on that.

[The Parliamentary Under-Secretary of State for Environment, Food and Rural Affairs (Rebecca Pow)]

The Government are committed to tackling plastic pollution and moving towards sustainable alternatives. The schedule outlines the various provisions that can be brought forward in secondary legislation to place new charges on single-use plastic items. That will provide the incentive needed for citizens to use reusable alternatives while ensuring that single-use options are still available to those who need them—examples such as those the hon. Gentleman mentioned. The success of the carrier bag charge, which has led to a 95% reduction in the use of plastic carrier bags in the main supermarkets since its introduction, demonstrates the difference that even a small incentive can make.

I want to wind up this debate by being clear that the power in schedule 9 is related to single-use plastic items, with the reason being that single-use plastic items, as I highlighted right at the beginning, are increasingly common in daily life. They are a significant and ongoing environmental problem, in use and disposal, and given that they are not valued, they are indeed disposed of via black bins or littering. They are not commonly recycled. The measure will address that.

Other single-use items will be addressed through the other myriad measures in the Bill, including deposit return and extended producer responsibility. The general ethos of this whole part of the Bill is to drive down waste from the very beginning, and I believe that the hon. Member for Southampton, Test, has not fully taken all that into account. When he sits down tonight in bed with the Bill and goes over it and the explanatory notes, he will realise that the problem he is raising is dealt with. That has all been thought about. I am, however, grateful to him that he will not oppose the schedule.

Question put and agreed to.

Schedule 9 accordingly agreed to.

Clause 53 ordered to stand part of the Bill.

Clause 54

Separation of waste

Question proposed, That the clause stand part of the Bill.

[Dr Whitehead]

We do not seek to oppose the clause, but I want to ask about food waste, which we may come to when we debate later schedules.

Food waste is clearly an important issue. Indeed, it was highlighted in the resources and waste strategy for England, which came out a little while ago, in a chapter headed, “Enough is enough: cutting down on food waste”. At the time, the White Paper projected that total UK food waste was 10.2 million tonnes. Interestingly, that food waste was broken down by sector. It suggested that households produced 7.1 million tonnes of food waste, hospitality and food service 1 million tonnes, manufacturing 1.85 million tonnes and retail 0.25 million tonnes. The important thing about that particular distinction made in the White Paper is that, yes, there is a large amount of food waste, as we know, and we could have a long debate about the reasons for rising food waste, how we can suppress that rise in food waste and how we can do much better at ensuring that we use what we are producing.

--- Later in debate ---

[Ruth Jones (Newport West) (Lab)]

My hon. Friend is making an important and detailed point. We do need to clarify this issue: what is written in law is written in law, and we must make sure that we fully understand it.

The Welsh Government currently have higher recycling rates than the English rates, because of the way that food waste is dealt with. Food waste is separated by the household; at kerbside, it is separated again by the collection authorities. There is food waste as well as recycling. There is an important point to be made about weekly collections. If food collections are less than weekly, all sorts of contaminations can occur, such as maggots, infestations and so on. Does my hon. Friend agree that it is important that we clarify these points?

[Dr Whitehead]

My hon. Friend is absolutely right that clarity is important.

In clause 54(4), immediately after the conditions that are set out on recyclable and food waste, there is a separate amendment to the Environmental Protection Act 1990, which talks about the

“separate collection of household waste from relevant nondomestic premises”.

The conditions in that proposed new section are different from those on household waste. We have an issue here about what it means to collect recyclable waste, which may be food waste, in the context of household collection; and what it means to collect food waste that is separate from recyclable waste, and appears to be collectable once a week.

Unless the join is properly made between the different provisions in legislation, it appears to me, the holes will not be completely filled. Can the Minister point me to other parts of the Bill where they are filled? Alternatively, will it be possible to fill those holes in different ways, by regulations? I would be delighted to hear from the Minister what she thinks about the idea in general and how far she thinks the clause has gone towards resolving the problems.

[Rebecca Pow]

I thank the hon. Gentleman for his comments. In the 2018 resources and waste strategy, the Government set out their intention to achieve 65% recycling of municipal waste by 2035. Our current arrangements are insufficient to meet that, so clause 34 will make a big difference. It will make recycling simpler for everybody by requiring the same recyclable waste streams to be collected from all households, whatever their local authority. At the moment, as hon. Friends and Members know, we have myriad different systems across the country, which is clearly not the best way to get the most products collected, recycled and reused. That will include non-domestic premises such as schools, hospitals and businesses.

Through the Bill, no matter where people live in England, they will have their plastic, metal, glass, paper, card, food waste and garden waste all collected for recycling, with food waste being collected from households weekly. The unexpected consequences of leaving food waste longer than that were outlined by the hon. Member for Newport West.

Food waste should be collected separately unless absolutely not technically or economically practical, but there is a requirement for it to be collected every week. At the very least, householders will have a bin for what is called dry recycling, which are the first things I mentioned, and another bin for residual waste, as we do in Taunton Deane already; I do not know whether they have those in Southampton, Test.

[Dr Whitehead]

They do.

[Rebecca Pow]

All the district councils in Somerset join together for that scheme. It works extremely well and it is very straightforward. All other local authorities will follow a similar model, so there will no longer be a postcode lottery with one place where they do collect it and another where they do not.

For the first time, there will also be a requirement, as was raised by the hon. Gentleman, for non-domestic premises and businesses to arrange to have the same recyclable waste streams as households, separately collected, with the exception of garden waste, and for them to present their waste in accordance with those arrangements. I honestly believe that the hon. Gentleman is getting a bit muddled in his interpretation of what he is reading, because what is envisaged is clear.

[Rebecca Pow]

We have made it very clear from the beginning that burdens to local authorities will be covered. If the hon. Gentleman wants us to write to him in more detail about that, we can, but that has been made quite clear.

[Dr Whitehead]

If I am being misled, I look to the Minister to provide clarification, which I hope she is beginning to do—indeed, that is what I want, to inform my understanding of how the clause will work. There are some things that I cannot quite get to the bottom of, however, so perhaps she can point me to exactly how they join together.

I very much welcome the advances on food waste and it is essential that we take action on that, but I remain unconvinced that the clause states exactly that every local collection authority has to provide a food waste collection. If they do provide a food waste collection, it has to be collected once a week, but does the clause mean that every local authority has to provide an unmingled food waste collection arrangement and that that arrangement is not to be mingled with more general recyclable collections?

I am sure that the Minister can appreciate the distinction between putting a whole pile of food waste in a general recycling bin and separating food waste out so that it can be used for specific purposes. If food waste is mingled in with recycling, it is difficult to take it out subsequently, and it cannot be used entirely for the purposes for which we want food waste to be used: anaerobic digestion and various other things.

--- Later in debate ---

[Daniel Zeichner]

It is a pleasure to follow my hon. Friend, who has made a very good case for the amendment. I am puzzled about why the world is not more excited by the Bill at the moment. Given the wider world’s interest in environmental issues, one would expect it to be on everyone’s lips. Of course, Greta Thunberg laid out the challenge: she does not trust a single politician, and here was the opportunity for the Minister to respond and to become a politician Greta Thunberg might trust. Part of the problem is the lack of ambition in the Bill, and that is exactly what the amendment inserts into it—a sense of urgency.

I suspect that hon. Members have been into primary schools and talked to young children. I used to do that often, and I was struck by how many times environmental issues came up. I have had numerous letters from schools, and the issue of waste being transported elsewhere comes up time after time. So many of our fellow citizens do the right thing. In so many households, particularly in a city such as Cambridge, people go to huge efforts to recycle, but then they ask themselves where it goes. When they read—possibly even in The Guardian occasionally—that all is not well on this front, it really demoralises them. They think, “What’s the point?” They are doing their bit, but their Government are not doing the bit that only Government can do.

That is why there is an opportunity to strengthen the Bill. The Minister should welcome the opportunity the Opposition are giving her today to do that and to perhaps begin to be able to say to the wider world that these things really are worth supporting. With all the caveats, all the “mays” and all the reasons why these things cannot be done yet because they are too difficult and complicated, the feeling out there in the wider world among the people we represent is that there really is not the sense of urgency that the situation requires.

[Dr Whitehead]

I echo my hon. Friend’s claim that the amendment is very important for how the country is seen to deal with its waste, and particularly for how we are seen by our own population. Hopefully, we are seen in a positive light. All that we have discussed about recycling, single-use plastics and such things is based, to a considerable extent, on the public’s confidence that what is going to happen is actually what does happen. If the public think that none of what is being said to them is true, the chances of them co-operating—by sorting everything into different bins, ensuring that things are returned, and stopping dumping things in hedges—will be undermined.

The fact that we are seen to be dealing with our own waste properly and safely, and that we are not simply using the export of waste as a safety valve for our inadequacies in processing waste fully in our country, ought to be something that should concern us very much. Frankly, that is what has happened over a number of years with our waste exports. We do import some waste, but we export quite a lot more than we import. The waste we import is usually waste that can be used for energy from waste and various other things, such as refuse-derived fuel. The waste we export is not only of a much wider variety, but actually goes to parts of the world where, in many instances, we cannot be sure—and certainly, people there cannot be sure—that the destination for that waste is of the standard we would expect if that waste were disposed of in our own country.

The Minister has said this legislation would ensure that we do not export waste other than to OECD countries. That sounds very reassuring, until we look at membership of OECD countries. It is not, shall we say, EU members and a couple of other states in the world. It is actually a wide variety of states across the world: for example, Chile, Colombia, Mexico and Turkey are members of the OECD. Therefore, that is not necessarily the quality standard route, as far as safety valves are concerned. The best thing to do is probably to ensure we have sufficient recycling collection, processing and reuse facilities here, so that we can really deal with all our waste in the UK. That is not just a practical thing; it is a moral obligation we have for the future, as far as waste management is concerned.

As my hon. Friend the Member for Newport West mentioned, what we really do not want is repeated scenes—not just repeated scenes, but repeated extremely embarrassing scenes—of bales of waste, mainly consisting of plastic, going to countries we think will quite easily accept them and say nothing, but that are now beginning to say, “This is not good enough. The quality of this material is not right. It is not what we thought it was going to be, so you can have it back.” That is not just one instance—Sri Lanka; we have form on this. This has happened with several countries, including Malaysia, which sent back 27 bales of waste. Indeed, I put a written question to the Minister a little while ago about how that had happened, what was going to happen with that material when it came back to the UK and whether it would be properly dealt with and disposed of.

Part of the reason these things have started to happen is that some of our traditional destinations, in terms of what have historically been fairly lazy assumptions about export of waste, have drawn the drawbridge up themselves. China’s great green wall policy means that the Chinese no longer want to receive anything that looks vaguely usable that we might put in a container back to China, and that we cannot work on the assumption that they can somehow reprocess some of it and will be quite pleased to do so because that will help their economy. They do not want it. They have put a green wall up to stop these things happening.

That has meant that the waste exports have gone to other countries, which it was thought are less particular about what they want to receive and, indeed, probably happy to receive stuff that is not what it says on the tin or on the bale. One issue from this particular return of bales of waste to the UK was that they were claimed to be high-quality waste that could be reused and remanufactured by those countries for recycling purposes. However, they were not. There was all sorts of old stuff, to coin a phrase, in those bales, and it was way beyond the standard that they would reasonably accept. Two questions arise from that. First, what were we doing continuing to export in that lazy way to those countries? Secondly, why did what I thought were our internal checks and balances to ensure the quality of what we export fail to work?

We have potentially considerable work to do. If we are to continue to export waste at all, we have to get our act together and ensure that that waste is as good as it could be and is absolutely not going to the wrong places. The Opposition think that the best way to deal with plastic or mostly plastic waste is simply to say that by 2025 we will stop doing that. Yes, that gives us a challenge, because we currently do not have sufficient good-quality plastic recycling facilities in this country, particularly those that can properly separate the 25 or 26 different kinds of plastic and put them at the right level in the plastics hierarchy so that we do not end up only making traffic cones with the plastic we recycle.

With plastic recycling, the production level of the plastic going into the system needs to be commensurate with the recycling that takes place, so that the plastic can be recycled at that level. For example, food-grade plastic has to be recycled with other food-grade plastic. If it is contaminated with anything else, it stops being food-grade plastic, recycled or not. Indeed, if we are not careful, it all goes to the bottom of the plastic hierarchy, and we get massive amounts of park benches and traffic cones and nothing else.

We need better facilities in this country for recycling and reprocessing plastic that can be recycled properly, according to the hierarchy. That is partly why the amendment says:

“from no later than March 2025.”

That would give us the space to start getting our act together in this country and ensuring that facilities are available to recycle properly. We really cannot accept, and I do not think any of us would want to accept, that exporting waste should in the future be seen as a safety valve for our own inadequacies. It has to be different from that. The amendment underlines why it has to be different, how it can be different and how we can set an example to the world by ensuring that we deal with what arises from our own backyard in our own backyard and do not send it out across the world, for purposes that we do not know too much about and that the people concerned are obviously increasingly upset about when it gets to them.

This is an important amendment that we hope the Minister will accept entirely in the spirit in which it is intended. I know that she is absolutely committed to those high standards in our waste management, and I hope that she will accept it in that spirit.

[Rebecca Pow]

I thank all hon. Members who have inputted, although I take slight issue with the “lost decade” for the environment. I think Labour needs to look at its own record prior to that and ask how we have come to this pass. Thank goodness we have a Government who are doing something about it. However, that is not to say that I do not welcome the Opposition’s support; I absolutely do.

Also, the hon. Member for Cambridge asked why people were not more excited about the Bill. I believe they are genuinely excited about it, and it is such a huge Bill. Other hon. Members have probably had this too, but when one meets groups of people who might be a wee bit, what I call controversial, and explains what is in the Bill, they are absolutely amazed. It literally addresses all the things that people write to us about and that fill our inboxes, so I for one am going to be that champion—indeed, I hope I already am. I hope that the hon. Gentleman will join me and promote the Bill, because I think it will do all the things we need for a sustainable future.

Anyway, to the amendment, for which I thank the hon. Member for Newport West and which would prohibit the export of

“waste consisting wholly or mostly of plastic”

by March 2025. However, the clause already provides powers to make regulations on a wide range of matters to do with the import and export of waste, including prohibiting and restricting its export. We will use powers in this clause to implement our manifesto commitment to ban the export of plastic waste to non-OECD countries —exactly what the hon. Member for Southampton, Test is asking for—as we recognise that some countries have difficulty processing imports of this type of waste. We are committed to dealing with more of our waste here in the UK through the measures I have been talking about today and previously. We will consult industry, NGOs and local authorities on the date by which the ban will be achieved.

[Dr Whitehead]

Will the Minister give way?

[Rebecca Pow]

I will, but very briefly, because the hon. Gentleman had a very long go just now.

[The Chair]

I am sure he will be very brief.

[Dr Whitehead]

I will indeed. I just wanted to correct what the Minister seemed to suggest I said about the OECD. I was not saying “Hooray for exports to the OECD!” Rather, I think we should see whether all OECD member countries keep to high standards of waste reception and export. My perusal of the membership suggests that not all do.

[Rebecca Pow]

I too looked at that great list of members yesterday and at non-OECD countries. The OECD countries represent 80% of the world’s investment and wealth. I just wanted to make a point about OECD countries and waste, though. We must not forget that waste is a commodity and that there is a legitimate global market for secondary materials. Exports of waste for recycling between OECD countries are already covered by an international agreement—the OECD decision—which provides the framework for the control of movements of waste.

Where the UK cannot currently recycle materials economically, exports can ensure in some cases that th3e materials are recycled, rather than sent to landfill or for incineration. Not all products sold in the UK are made in the UK. Waste exports can help to increase the amount of recycled materials going into new products we buy that are produced abroad. We must not forget the big picture where waste goes and what it is used for.

Making the amendment before the consultation on the date for stopping the exports of waste to non-OECD countries would pre-empt the result of the consultation. It is important that all stakeholders have a fair and equal opportunity to express their view on when the proposed prohibition should be implemented. The prohibition could have wide-ranging effects on local authorities and our wider waste infrastructure, and it is important to consider these effects fully before we set a timetable for implementing the ban.

I assure all hon. Members that the Government take very seriously the regulation of waste imports and exports, as well as the impact illegal waste shipments can have on the global environment—hence our manifesto commitments. Electronic waste tracking will help this agenda, as we will know what is going where and it will be harder to send the wrong products abroad. I reaffirm that we should be dealing with our own waste right here in the UK wherever possible. I ask the hon. Member for Newport West to withdraw her amendment.

--- Later in debate ---

[The Chair]

With this it will be convenient to discuss the following:

That schedule 11 be the Eleventh schedule to the Bill.

Clause 70 stand part.

That schedule 12 be the Twelfth schedule to the Bill.

[Dr Whitehead]

I wanted to draw the Committee’s attention to schedule 11, which concerns the local authority management framework. As hon. Members will see, within that framework on air quality, an enormous amount is placed on the local authority’s plate. That is quite right because the people at local authorities are absolutely the right people to deal with air quality problems.

A little while ago there were exceedances of world standards on air quality. The Department for Environment, Food and Rural Affairs required a number of the local authorities that were in danger of infraction at that point to draw up local air quality plans and to produce proposals to improve air quality in certain areas. My city, Southampton, was one of those places. Generally, there was a good relationship between the Department and my local authority in drawing up those plans—this was before the more extensive plans set out in schedule 11 —how those were looked at by the Department for Environment, Food and Rural Affairs, what sums of money were put in to support the plans in some instances, and how they then went forward. So far, so good.

Environment Bill (Fourteenth sitting)

Alan Whitehead Excerpts

Committee stage & Committee Debate: 14th sitting: House of Commons
Thursday 12th November 2020 Public Bill Committees

Question proposed, That the schedule be the Seventh schedule to the Bill.

[Dr Alan Whitehead (Southampton, Test) (Lab)]

I have a few things to say about the schedule, including some questions for the Minister about how it might best be implemented.

As I am sure all hon. Members know, how waste becomes a resource is set out substantially in the 2008 EU waste framework directive, which gives guidance to member states—to be placed into law—about how that process should be carried out. The Committee will also be aware that resource efficiency is a very real issue.

A big question is precisely when something in a stream should be defined as waste or as a resource. The waste framework directive contains a number of criteria about that end-of-waste transition, but the framework and the subsequent UK legislation have been fraught with difficulties and problems, because they have required waste to be categorised: as hazardous waste, as inert waste—waste that can be put in golf courses and so on—or as waste that must undergo various treatments, for example. The waste hierarchy, which the Committee has discussed, derives from a number of considerations not only about what waste is, but about what should be done with various waste streams.

--- Later in debate ---

[Ruth Jones]

My hon. Friend is making a powerful point. Would he agree that a good example of this is the supermarkets? In the past, food that had gone beyond its use-by date went to waste, but nowadays, thanks to important communication between supermarkets and homeless people, for example, the latter can utilise this food for their evening meals. One man’s waste is another man’s supper.

[Dr Whitehead]

My hon. Friend is right. We have made considerable progress on food waste, and we will come to discuss some wider aspects of food waste later in the proceedings. Nevertheless, she rightly states the principle: if a piece of waste which would otherwise be taken out and processed in certain ways is stewarded through that process, knowing that the outcome of that process is a good outcome, that process can be much more easily streamlined to ensure that what was waste becomes a resource.

For years, the Environment Agency has been trying to tackle the many instances where something that goes into a waste stream, such as bones residual to animal rendering, carcases and various other things, may well be treated as hazardous and have particular measures apply to them. However, if those bones can be transferred for the making of bone china, that industry can take the bones and steward them through the process of becoming a resource for undertaking what the industry wants to do. That allows what looked like a problem to become a solution. That is just one example—perhaps, not a terribly good example—but there are many examples of that in industry, where one industry’s waste, which may be classified in particular ways, is desperately needed as a resource for another industry, which cannot unlock that resource from it being waste. We have never properly gotten to grips with that in this country.

The concept of stewardship, whereby what is a piece of waste can be certified as being stewarded, ready for the purpose of becoming a resource, has never properly been defined in regulations or in law. Hence, often by the time we have gotten around to thinking that something is a particular resource, it has already been disposed of down a particular waste stream and is lost for that resource purpose.

[Daniel Zeichner]

As ever, my hon. Friend is making a thoughtful and interesting speech. As he spoke, I thought of some of the examples that came up in the covid-19 crisis in the food chains, where we were at risk because one part of the system relied on another in exactly the ways he is describing. What struck me is that the economies of scale are critical. Are we not much better being part of a wider, bigger system that allows us to use things that are potentially regarded as waste? With a small, narrow system, they cannot be reused, but they can be if we are part of a bigger system.

[Dr Whitehead]

My hon. Friend is absolutely right. The concept of a larger system through which all of this works is key to this whole discussion. Indeed, what we have been talking about, and what the waste strategy document says about the circular economy, means that putting this into a wider frame of how we circulate products through the economy, so that we do not pull virgin materials in and that everything we are using as it goes through the economy is reusable, recyclable or replaceable in one way or another, is essential to a resource-efficient and low-carbon waste and resource economy.

In this part of the Bill, we are essentially replacing elements of the waste framework directive with UK law, but does not seem to me that what we have done allows the sort of processes that I have described to be properly incorporated in regulations so that the circular economy arrangement can be expedited. Does the Minister consider that the regulations that will be associated with schedule 7 are capable of allowing those sorts of changes to be made, to the benefit of the recycled and reclaimed resources industry in the UK; or does she consider that we have missed an opportunity here, and that further legislation and/or regulations may be necessary to ensure that that can be done?

[Rebecca Pow]

I thank the hon. Member for Southampton, Test for his thoughts. I shall stick to the detail of what the schedule is actually about in my answers, but I want to touch on his general points. Of course, the whole purpose of the waste and resources section of the Bill is to reduce all waste with a range of measures, and to make everything we produce recyclable, repairable and more durable. That is why we are focusing particularly on eco-design.

The hon. Gentleman touched on some issues relating to bones and various things like that. This is a slightly more general comment, but there are many health-related issues that would have to be taken into account. It takes me back to the time of bovine spongiform encephalopathy, when any food waste was banned from being fed to pigs. There were masses of knock-on effects, but as a pig keeper, I was mortified about that. He will know that such things are complicated, so one cannot go down that burrow without discussing a lot of other issues.

I want to get back to the purposes of the schedule, but I will touch on the point made by the hon. Member for Newport West about food waste. I am sure she is pleased that food waste is dealt with in the Bill—that is one of the really positive and exciting things about it. Food waste will now have to be collected from local authorities in the waste collections. Some local authorities already do it, but every one will have to do it. Clause 47 and schedule 4 will require producers that are responsible for food surplus and food waste to take action, and that includes redistributing it. Great work is already done by many people, but that will be a requirement for surplus food.

On the schedule, by applying the principle of eco-design to non-energy-related products, we can drive up resource efficiency by gradually removing the least resource efficient products from the market. That is the very point that the hon. Lady was getting at. Those requirements might relate to durability, recyclability, repairability or the sustainability of products for dismantling and remanufacture. I think the hon. Member for Southampton, Test was getting at that point; products can be taken apart and then the component parts could be reused.

The requirements might also concern the material composition of products and the way in which products are manufactured, and the pollutants emitted or produced by products throughout the full lifecycle. For example—the hon. Member for Newport West said she likes examples—that might include moving and load-bearing parts such as wheels and hinges from items of furniture, because they might wear out first. Making them removable and replaceable could be part of the design. Where that is not the case, the regulations might require that parts can be removed without damage to the rest of the product, and other wheels can be screwed back on, for example. That is the kind of thing we are discussing.

As has been explained in relation to the resource efficiency information power, we have identified priority areas for action, including clothing, furniture and electronic equipment, where we believe requirements such as this are likely to have the greatest impact.

[Dr Whitehead]

rose—

[Rebecca Pow]

I am about to conclude, but I see that the hon. Gentleman is trying to intervene.

[Dr Whitehead]

I thank the Minister for giving way. I am not particularly criticising or wishing to take away from any of the excellent things the Minister has been saying about the purpose of these provisions. What I am trying to get at is what actually happens now—the way in which things are classified while they are going through the waste stream and before they turn into a resource, and the extent to which the classification under existing legislation hinders the process by which they may be liberated as a resource in exactly the way the Minister has described in her comments. That is what I am concerned about—whether those classifications can be substituted by a system of stewardship, which would enable that passage to be much more straightforward, good intentions notwithstanding concerning how that passage can result in a successful outcome.

[Rebecca Pow]

I understand the hon. Gentleman’s point, but I think he is overcomplicating the issue. Through the measures in the Bill, every single person who makes something will have to think about what it contains, what it is made of, what is going to happen to it, where it is going to go, who is going to reuse it and how long it will last. I think the issues he is worried about will solve themselves, in a way. If he wants more detail on that, I am sure we can write to him.

--- Later in debate ---

[Rebecca Pow]

Amendments 68 to 70 seek to correct a technical error concerning a reference to how a scheme administrator would be established in Scotland. The amendment will enable a scheme administrator to interact, engage and make payments to a scheme administrator established through a deposit and return scheme in Scotland. It was always our intention for schemes within the UK to be able to work together, as I have already highlighted, including being able to make payments between schemes. I think the hon. Member for Newport West asked about that. The measure will help ensure that schemes are easier for consumers to use, will help to reduce the risk of fraud between schemes, and provide coherence for producers and retailers. I hope the Committee will agree to the amendment.

Amendment 68 agreed to.

Amendments made: 69, in schedule 8, page 174, line 20, leave out from “person” to end of line 22 and insert

“exercising the functions of a scheme administrator in relation to a Scottish deposit and return scheme”.

See Amendment 68.

Amendment 70, in schedule 8, page 174, line 24, leave out “that Act” and insert

“the Climate Change (Scotland) Act 2009 (asp 12)”—(Rebecca Pow.)

This amendment is consequential on Amendment 69 and inserts the full name of the Act being referred to.

Question proposed, That the schedule, as amended, be the Eighth schedule to the Bill.

[Dr Whitehead]

I welcome the opportunity to have a brief debate on the schedule, which is all about deposit schemes. As the Minister has set out admirably, the deposit schemes can target things that cause particular problems, including litter, fly-tipping and various other activities. I want to ask the Minister what the deposit schemes might consist of and the extent to which the schedule would facilitate that extent being realised.

When talking about deposit schemes, we usually think about precisely the sort of things that my hon. Friend the Member for Cambridge talked about, with memories of kids hanging around lidos and swimming pools, nicking Coke and pop bottles from sunbathers to take them back to the shop and get thruppence on them—not that I did that, obviously.

--- Later in debate ---

[The Chair]

Order. There is too much muttering.

[Dr Whitehead]

What occurred then, and what is occurring now—or what I hope will occur now—is that the motivation to recycle, return and sort out particular items comes from a value being given to the residual function of those items after their primary function has been carried out. In the previous example, the Coke bottle has been emptied, but it still has value because the child can get some money by returning it to the shop.

We have seen that process in operation in various parts of Europe. In France, a number of supermarkets have reverse vending machines, where bottles can be inserted into the machine in exchange for a credit. The value has been secured and the product has been safely restored for recycling. The consequence of a lack of such schemes is that people dump things in the street or, in more serious instances, engage in serious fly-tipping.

On deposit schemes for larger items, some really large items have effectively got themselves into that value chain by different means. Hon. Members who were local authority councillors for any long period may remember that there was a particular passage of time when many estates and other places were plagued with burnt-out cars. People had decided that their car had no value because it was an old banger or had broken down, and that the easiest thing to do was to go and dump it somewhere and/or burn it.

That was substantially resolved by the end-of-life vehicles directive and the beginnings of the idea that even an old banger had some value for recycling purposes. The person who might otherwise have put that car into a hedge or burnt it in a car park would be incentivised to drive it on its last lap—or push it if it did not work —down to the breaker’s yard, where they would get a couple of hundred pounds for it, because it had increased value that way.

In the waste electrical and electronic equipment directive, we have a sort-of attempt to give that value to white goods and various large items. The producer responsibility elements of WEEE required that the producer have a responsibility to get those products back. The process is very indirect. At the end of the life of a particular product, the producer is not necessarily in the same state as when the product was first produced, so you may have orphan products that require producer responsibility but are without a producer responsible for them. That producer responsibility is also a mediated process because someone else has to collect the product and establish what the responsibility should be.

[Ruth Jones]

Again, my hon. Friend is making a powerful and practical point. When ordering a new washing machine or dishwasher, for example, people have to pay if they want the person coming to fit the new one to take the old one away. That is almost a disincentive to recycle and reuse things. It is similar with mattresses. Does he agree that mattresses are the bane of local councils’ lives? They are dumped on the side of the road. We should make sure that they are recycled properly.

[Dr Whitehead]

My hon. Friend raises the issue of mattresses, which absolutely are the most difficult thing to properly dispose of. I was going to restrict my point to white goods, but it is absolutely true of mattresses. Even with better regulations in place than previously, we still find substantial fly-tipping, quite often of mattresses, old furniture and white goods—old fridges or whatever. It is not so much the fridges and white goods that could have been taken away when a new item is purchased. If that item has a second life and is reused after it has been taken away, at the end of its life it has no value, and we are lucky if it goes down to the council tip or whatever and back into the producer responsibility cycle.

We still have a considerable problem with fly-tipping of these particular products. One way to deal with that would be to give those items a residual value, like the pop bottles. There is no reason whatever why any hon. Member should remember this, but I put forward a ten-minute rule Bill, in about 2001, I think, to introduce a deposit scheme for white goods. That would have meant that, for a small additional outlay, the product would throughout its life have a value attached to it, even when not being used. It would be a tiny proportion of the original cost of the white good—let us say a refrigerator—and as that reduced in value over time, the proportion of the value represented by the deposit would increase. Therefore, by the end of that particular product’s life, even if it had gone through several owners, it would have a value attached to it, which might well impel someone to turn it in rather than put it in a hedge. That is the same principle as the value that was added to vehicles at the end of life.

I am not clear about whether the regulations in schedule 8 are actually generic, or whether they will actually enable that sort of thing to happen in addition to the things that we normally talk about, such as the easier recycling of small items. I think the Minister will agree that it is not just about littering, it is about these large items. We could do the same thing with mattresses. We could require a deposit on a mattress, and provided someone had a certification of the deposit, they could receive the value of the mattress at the end of its life. Mattresses actually have quite long lives in various iterations. Does the Minister think that these regulations could accommodate that sort of arrangement? Although she has said that these regulations should be targeted, does she consider that in the fullness of time, perhaps they could be expanded in ambition and scope to accommodate those sorts of arrangements for the future? Does she think that within the schedule as it stands, regulations can be made that allow that to happen, or does she consider that further work may be necessary to bring it about?

[Rebecca Pow]

I thank the hon. Member for his comments. I am pleased he raised those points, because it gives me a chance to expand a bit on a genuinely interesting subject by which most of the population are fascinated. As has been mentioned, people do want the schemes. In fact, I am old enough to remember those glass Tizer bottles that could be taken back.

To reiterate, we are talking about schedule 8, which deals with deposit return schemes and the issue of how many plastic drinks bottles we use—14 billion a year, as well as 9 billion cans and 5 billion glass bottles. A lot of them are recycled, but it is still only 65%, so we have a long way to go. That is why the schemes will be important.

We have had a consultation and we are in the process of developing proposals using further evidence and ongoing stakeholder engagement, which is important because we have to involve the industry and local authorities—all the people involved in that whole space. The final scope and model of the schemes for drinks containers, including whether it is all-in or on-the-go, will be presented in a second consultation. We are considering cans and plastic and glass bottles.

In the previous consultation, we also consulted on coffee cups, cartons and pouches, which are one of my bugbears. We seem to be forced to buy our cat food in pouches whereas most of it used to be in tins, which I can hardly find now. That is an interesting subject that we need to go into at some point.

The opportunity will be provided by the schedule, which sets out the framework for deposit return schemes, including what items would be subject to a deposit return scheme, how the deposit amount is set, the requirements that can be placed on scheme participants, and the enforcement requirements under a deposit return scheme. The crucial thing is that a scheme has to be well functioning to make it easy for consumers to use. That is incredibly important, otherwise they will not use it and it will not work.

--- Later in debate ---

[Rebecca Pow]

I appreciate the focus on this issue. However, I fear that the amendment has not taken enough account of the bespoke issue of plastics or of how much of the Bill is aimed at tackling our single-use culture. Applying charges to single-use plastic items will be an effective way of reducing the impact on the natural world. The measures are designed to focus specifically on single-use, hard-to-recycle plastics.

In 2019, the Marine Conservation Society recorded that, on average, per 100 metres of beach, more than 150 pieces of plastic were found, which is a shocking revelation. That is more than triple the second most commonly listed item, which is cigarette stubs, which also contain plastic. I do not know whether hon. Members have been to the Keep Britain Tidy events, but that organisation has a big drive on cigarette butts at the moment. They contain a horrifying amount of plastic, not to mention the other toxic chemicals.

The MCS’s work showcases the prevalence of plastics in our environment and explains why this material needs a focused clause in the Bill. As we saw with our ban on plastic straws, plastics still have an important role to play in certain applications, but Government intervention is necessary to tackle unnecessary plastic. Many of our mailbags are full of messages about these items. Public opinion was demonstrated in HMT’s call for evidence on tackling the plastic problem in March 2018, which received an incredible 162,000 responses, with strong support for the use of taxes and charges to tackle single-use plastic waste.

A lot is already being done on single-use plastics. Great work is being done on microbeads and microplastics, which the hon. Member for Cambridge referred to. When I was a Back Bencher, I asked the Speaker whether he had had a shower that morning, with the intention to point out how many microbeads were in the shower gel that would have been used. We have brought in one of the toughest bans in the world. There is also the 5p single-use carrier bag charge, which has had a dramatic impact on the number of bags used. A lot of good work has already been done.

The Bill already provides a robust approach towards achieving a more circular economy. Our new powers to reform the packaging waste regulations will enable us to adapt the system to incentivise all packaging, not just plastic, to be more carefully designed and manufactured, with recyclability in mind. The eco-design measures and consumer information powers will enable regulations to be made that set basic standards with sustainability in mind and that require information provision to consumers, to drive the market towards products that are designed to last longer, perhaps through multiple uses, instead of being thrown away after first use. The House of Commons shop is selling some excellent cutlery packs, which are made of bamboo. My hon. Friends and hon. Members should all carry a pack in their pockets or bags, to cut down on single-use items.

Meanwhile, our powers to enable the implementation of a deposit return scheme and introduce consistency in household and business recycling collections will drive the capture of more material and all types of single-use items for recycling.

[Dr Whitehead]

rose—

[Rebecca Pow]

I will give way quickly, before I wind up.

[Dr Whitehead]

I am slightly concerned that the Minister is not responding to exactly what we said in the amendment. We need to make a decision on what this is about. Is it about single-use items, or is it about plastic items? In this instance, the two have been elided for the purpose of a concentration on plastic single-use items.

Schedule 9 defines single-use items in paragraph 1(3). It does not define them as a plastic single-use item, but simply as a “single use item”. The schedule enables the Government to make specific regulations. Indeed, the regulations “may specify”—that is the correct use of a “may”—single-use items, but only those that 

“are made wholly or partly of plastic”,

which narrows down the range of single-use items.

[The Chair]

Order. I think the hon. Gentleman has made his points—[Interruption.] I cannot bring in any other Members until the Minister has resumed.

Environment Bill (Twelfth sitting)

Alan Whitehead Excerpts

Committee stage & Committee Debate: 12th sitting: House of Commons
Tuesday 10th November 2020 Public Bill Committees

[The Chair]

With this it will be convenient to discuss clauses 38 to 40 stand part.

[Dr Alan Whitehead (Southampton, Test) (Lab)]

Hon. Members will see that under clause 38, when the Office for Environmental Protection

“gives an information notice or a decision notice, applies for an environmental review, judicial review or statutory review or applies to intervene in a judicial review or statutory review, it must publish a statement”.

What is curious about this clause is that while it states at the beginning that the OEP “must” publish a statement, the next subsection says that that does not apply

“if the OEP considers that in the circumstances it would not be in the public interest to publish a statement.”

My concern is this: in what circumstances would it not be in the public interest to publish a statement; and why is it only for the OEP and no one else to decide that it should not publish such a statement? I would like to hear from the Minister what she considers those circumstances to be and, if the OEP so decided, what would be the criteria upon which that decision would be taken?

[Anthony Browne (South Cambridgeshire) (Con)]

When we last met we all agreed that the OEP should have as much independence as possible. I fully support that. What I find confusing about the hon. Gentleman’s argument is that he is talking about reducing the OEP’s ability or flexibility to do what it sees fit, and he is trying to set down in law exactly what it should do in different circumstances. Surely we should appoint an independent regulator, make sure that the best people are running it and—as much as one can—let it decide whether to issue a notice or not. This would limit its independence.

[Dr Whitehead]

The hon. Gentleman will have accepted already that, throughout the passage of the Bill, we have tried to assert robustly—this is accepted on all sides—that the OEP should be truly independent and should undertake its activities in that spirit of independence. We have tried to point out that a number of measures in the Bill would undermine that independence by putting constraints on the way in which it acts.

Secondly, we have tried to ensure that the OEP is set up in such a way that it is fully transparent and organisationally accountable for what it does. Those two things go together: the OEP should be fully independent, and it should be set up in such a way that that independence is based on accountability and transparency in its actions. Clause 38—I remind hon. Members that this is a clause stand part debate, not an Opposition amendment—appears to suggest that the OEP has an option to be less than transparent in its dealings with the public in relation to public statements. That is a substantial caveat on a requirement. It is a “must”, not a “may”. It “must” publish those statements, but the caveat is that if the OEP thinks that it is not in the public interest, it does not have to do so. On the face of it, that is resiling from the second principle that I set out: that the OEP should act in a publicly transparent and accountable way.

What I want from the Minister is either an explanation of why that subsection has been placed in the Bill or to know whether there could be a potential challenge to the subsection, which appears to enable the OEP to decide, regardless of any other criteria, that it feels something would not be in the public interest. If the OEP decided that it would not be in the public interest to publish a statement—so no such statement would appear and people would not know even that a statement was about to come out—what would be the potential challenge, and what machinery exists elsewhere in the Bill that one may not yet have seen that would enable criteria to be applied to how the OEP considers what is in the public interest or otherwise? All hon. Members will agree that if the question of public interest is subjective and internal to an organisation, that is not necessarily a good test of what the public interest might be considered to be.

That is why this is a stand part debate: it is a question to the Minister, rather than a suggestion that this clause be removed.

[Daniel Zeichner (Cambridge) (Lab)]

Good morning, Mr Gray. My hon. Friend is making important points. In paragraph 340 of the explanatory notes, there is a comparison with how the European Commission works. One of the key issues is: is this system now stronger or weaker? Does my hon. Friend believe that this is a more or less transparent process?

[Dr Whitehead]

As my hon. Friend suggests, it is a less transparent process than before. It appears that, in this clause, we are retreating from the principle of transparency. Of course, I may be completely wrong, and there may be factors, to which I hope to be pointed shortly, that mitigate or dissolve that concern. I am sure that the Minister can reassure me on that, or point to things that mean that the clause, odd though it looks in terms of transparency, is not as bad as it seems on the surface.

[The Parliamentary Under-Secretary of State for Environment, Food and Rural Affairs (Rebecca Pow)]

It is good to be back. I thank the shadow Minister for his comments, and all hon. Members for carrying the proceedings last week when I was unwell. I put on record my thanks to the Whip, my hon. Friend the Member for Aldershot, who did a sterling job, and to the Opposition for, I think, being kind.

We are talking about clauses 37 to 40 en bloc. Those clauses ensure that the OEP can operate effectively, openly and transparently when carrying out its important duties, which of course is vital. Clause 37 ensures that relevant Ministers are informed and able to participate in relevant enforcement cases, and that the OEP can recommend ministerial involvement in legal proceedings. That allows it to make a case for a Minister’s participation in instances where it may be helpful for Ministers to provide input to the proceedings.

The shadow Minister touched on clause 38. I gather that he will not oppose it, but it is always good to have some questions and inquiries. I hope I will make it clear that the clause requires the OEP to publish statements at specific points during the enforcement process. The clause is important because it establishes the OEP as an open, effective and transparent watchdog.

If the OEP, having decided to carry out an investigation, is to do so effectively, we must enable it to obtain and review all the available information from other public bodies, so that it can reach a robust and fair conclusion. Clause 39 therefore ensures that, in appropriate circumstances, obligations of secrecy that would otherwise apply are disapplied to enable public authorities to provide information to the OEP in complaints and enforcement cases. All these clauses work together. It is important to note, though, that we have also ensured that certain fundamental protections, such as those set out in the Data Protection Act 2018, are unaffected by this clause.

Openness and transparency are important, but confidentiality is also vital to allow the OEP to establish a safe space for dialogue with public authorities, so that it can quickly and effectively establish the facts in a case and explore potential pragmatic solutions without the need for litigation, where that can be reasonably avoided. The whole system has been set up in a way that means that when the OEP is carrying out its enforcement functions, it first takes a liaison, advisory and discussion role. We want to do all that before we get down the road of litigation and all those other things. That is very important.

I thank my hon. Friend the Member for South Cambridgeshire for his comments. He is absolutely right that we do not want to tie the hands of the OEP. It has to be independent, and it has to be able to come to its conclusions about which bits of information will and will not be relevant.

Clause 40 plays an important role in the OEP carrying out its functions by ensuring an appropriate degree of confidentiality during the enforcement process. I assure the shadow Minister that the clause does not create a blanket ability to prevent information being disclosed, which I think is his fear; that is not how the OEP will operate. The OEP and public authorities will still have to assess any requests for information case by case, in line with the relevant regulations.

Clauses 39 and 40 therefore strike a careful balance between retaining confidentiality of that very sensitive aspect of the enforcement process and creating greater transparency across the process. As has been said many times, transparency is absolutely key to good governance. The EU does not even have such a system, so we are setting ourselves up as world leaders by introducing this kind of independent body. I hope those points have reassured the Committee.

--- Later in debate ---

[Dr Whitehead]

I thank the Minister for her explanation. I am not entirely happy with the way the clause is drafted, but I accept what she has said and will not oppose it.

Question put and agreed to.

Clause 37 accordingly ordered to stand part of the Bill.

Clauses 38 to 40 ordered to stand part of the Bill.

Clause 41

Meaning of “natural environment”

[The Chair]

We now come to amendment 113. No member of the Committee has signed the amendment, but anyone may move it if they wish. No one has signalled that they wish to, so we will move straight on.

[Dr Whitehead]

I beg to move amendment 126, in clause 41, page 25, line 35, after “structures” insert

“but including sites of archaeological, architectural, artistic, cultural or historic interest insofar as they form part of the landscape”.

This amendment seeks to widen the definition of “natural environment” in this Part to include the historic environment. For the avoidance of doubt, we do not seek the inclusion of the historic environment in the definition of “environmental law”, or in the enforcement functions of the OEP.

The amendment revisits, in a slightly different way, a discussion that we had about the definition of “natural environment” and the effect of buildings and other structures on the environment. As the Committee will recall, when we spoke about that in a previous sitting, we discussed the fact that the appearance of the natural environment has, over centuries, been changed by human activities. If we went back in time, there would be no point at which we could say, “This is the natural environment, so we will use this point in time for our definition, because after this time, it is no longer the natural environment.” The natural environment is clearly constantly changing through human intervention.

Amendment 126 would give the clause a better grip on the issue than amendment 113, which was not moved. Amendment 113 sought to leave out

“(except buildings or other structures)”,

but amendment 126 would insert

“but including sites of archaeological, architectural, artistic, cultural or historic interest insofar as they form part of the landscape”.

That is the nub of the question, as far as our landscape is concerned. Not only has the natural environment been changed over time in the way that I have described, but there are, in our natural environment, a whole host of structures—they might come under the definition of “buildings or other structures”, which, as hon. Members can see, are effectively excluded from the clause—that in various ways become part of the natural landscape as a result of their longevity in it, and because they have, at some stage, changed that landscape, thereby becoming a part of it.

--- Later in debate ---

[Ruth Jones (Newport West) (Lab)]

My hon. Friend makes a powerful point. It is important to recognise that people may not even know of such places. There is a mountain called Twmbarlwm just outside my constituency. On the top, it has a twmp, or pimple, which is an iron age burial mound. People do not even know that that pimple is manmade. They would be affronted if anyone tried to deal with it. They assume it is natural, but it is not, though it has been there for hundreds of centuries. It is important that we make every effort to cover all eventualities. If this Bill is to be groundbreaking for generations to come, we must cover all bases.

[Dr Whitehead]

I thank my hon. Friend for making that point. That underlines what we know is right in our hearts. If we reduced this to a few lines on a piece of paper, we might have to start making them distinctive in order to define what we are talking about. This amendment tries to ensure that such structures are regarded as part of the natural landscape.

[Anthony Browne]

The hon. Gentleman makes the valid point that many historical monuments have become part of the landscape. The UK is one of the most densely populated countries in the world. After 40,000 years of continuous human habitation, there is virtually nothing left that is not touched by the hand of man. I fully support the desire to protect monuments and so on, but the Bill is about protecting the environment. There is a separate legal framework for protecting monuments. I am worried about confusing the objective of the Bill, and worried that the OEP will be tasked with protecting monuments—when there is a separate legal framework for that—rather than protecting the natural environment.

[Dr Whitehead]

I take the hon. Gentleman’s point but it is not a question of the OEP having to take on the mantle of English Heritage, or a national monuments commission, and assiduously sweeping the leaves off ramparts and other things. Hon. Members will see that clause 41 is simply a meaning clause: it defines what we mean elsewhere in the Bill. It is important inasmuch as it provides a serious context in which other measures in the Bill can be seated. That is its only function. When we are seating those meanings within other parts of the Bill, it is important that we are clear about the extent of those meanings or indeed the limits of those meanings. That is all that the amendment seeks to do. It does not seek to do anything more, and does not give the OEP any obligation as far as these monuments and buildings are concerned, nor the changes in the landscape to which I refer. The hon. Member can rest assured that there would be no duty of care on the OEP, and it is merely a matter of including that in the definition.

[Fleur Anderson (Putney) (Lab)]

Does my hon. Friend share with me concerns that the National Trust—one of the custodians of our British landscape—is also concerned about that very clause? They say that heritage and the natural environment “go hand in hand”. They will be looking to the clause to put them together in the correct way, as my hon. Friend said, for the very nature of our British environment. Nobody in this room would disagree with that.

[Dr Whitehead]

I thank my hon. Friend for that point, which I had not fully covered. The National Trust is, indeed, responsible for sweeping the leaves and various other things from these monuments, and it is among the bodies expressing concern that the meaning of clause 41 will not adequately serve the purpose of guiding the clauses that go before it. I hope that the Minister can provide a good explanation for the meaning in parenthesis being as it is. It is not that it should not be there—it will cover a number of issues, and if it was not there then we might start considering a modern block of flats part of the natural environment. Clearly, we would not want to go that far. I hope that the Minister accepts that amendment 126 strikes the right balance, ensuring that we have a much better definition to work with and that we make a distinction between buildings and other structures that are clearly not part of our natural environment and those that have become so, certainly in the public’s view, and deserve to be included in this meaning clause.

[Rebecca Pow]

I thank the hon. Gentleman for his amendment on the meaning of the natural environment. Obviously, we discussed this previously in some of the earlier clauses relating to heritage and such. I recognise that the natural environment does not exist in a vacuum and that our interactions with it and use of it create a heritage that we should be proud of, as I think we all are. It does not exist in a vacuum—the shadow Minister himself touched on this—but I believe it would be inappropriate to include the elements in the amendment in this particular definition, given that one of its key aims is to determine the scope of the functions of the Office for Environmental Protection.

The OEP must remain focused on its principal objective of environmental protection and the improvement of the natural environment. It is not its place to investigate complaints against breaches of legislation such as that concerned with cultural heritage such as listed buildings, which my hon. Friend the Member for South Cambridgeshire touched on, listed building consents or protection for ancient monuments. There is a raft of legislation that deals with all those things, and that is not the role of the OEP.

--- Later in debate ---

[Dr Whitehead]

With the greatest respect, I do not think the Minister has made the sort of case I anticipated she might make this morning to explain why the clause is so loose as far as buildings and other structures are concerned. It is not the case that our amendment would prejudice clauses subsequent to this—the Minister set out clauses 42 and 43 as falling within, for example, the meaning of environmental law. We think it would be a good thing if the structures and buildings that have changed the natural environment and have effectively become part of it were included in those considerations.

[Rebecca Pow]

I have the exact words here of the 25-year environment plan, which is the first environmental improvement plan. It commits us to:

“Safeguarding and enhancing the beauty of our natural scenery and improving its environmental value while being sensitive to considerations of its heritage.”

It is in there.

[Dr Whitehead]

I am sorry to say that that is rather a tenuous linkage to the fact that we must set out a plan. I have a copy of the plan we have already set out in front of me. There is merely half a line within that general plan to say that we should be “sensitive”. There is nothing else in the plan, as far as I can see, that says anything further than that—nothing that goes anywhere near the sort of consideration that we are putting in front of the Committee this morning.

The amendment makes it clear that we should not only be sensitive, but that we should include as a consideration those historic monuments and those elements of heritage that effectively form part of the natural landscape. Nothing in the Bill addresses that point, and the amendment seeks to put that consideration on the face of the Bill.

The Minister has underlined our point to some extent. Being sensitive is not good enough; we have to have something in the Bill that spells out the overall consideration that should be made when thinking about the natural environment. We think strongly about this point, to the extent that we will press the Committee to a Division this morning. The amendment has very considerable merit and, whether or not the Division is successful—we will see when the votes come out, rather in the way of the American election—we nevertheless hope that the Minister will consider the point further.

Question put, That the amendment be made.

--- Later in debate ---

[Dr Whitehead]

I beg to move amendment 125, in clause 41, page 25, line 35, after “water” insert “, including the marine environment”.

This amendment clarifies that the natural environment includes a reference to the marine environment and is not confined to inland waters.

[The Chair]

With this it will be convenient to discuss amendment 193, in clause 41, page 25, line 35, at end insert—

“(d) the marine environment,”.

This amendment aims to ensure that the seas and oceans and the health of those environments are considered when the OEP is working.

[Dr Whitehead]

Before I discuss the amendment, I would like to seek your guidance, Mr Gray. As you can see, unfortunately, our Whip is not with us this morning through illness, but I wish to get a note to the Government Whip. Since I cannot walk out of the room to talk to him, may I through you or somebody pass this note to him?

[The Chair]

I would be delighted to pass that to the Minister, who will pass it on to her Whip.

[Dr Whitehead]

I shall be grateful if the Minister could draw the Whip’s attention to that when he returns.

[The Chair]

It might be appropriate for the shadow Minister to appoint one of the other Labour Members as a temporary Whip. That might be helpful for the Committee.

[Dr Whitehead]

Yes, that is quite right. Perhaps I should have thought of that; it is difficult to do mid-flight.

It was also remiss of me not to welcome the Minister back to her place this morning. I think she knows that when she was absent last week, we sent her our good wishes for a speedy recovery. Indeed, our wishes have come true as she is with us today. I am pleased to see her in her place and I hope that she has indeed had a speedy recovery and is fully back with us, as I am sure she is. I am sorry that I did not place that on the record earlier, but I was rather preoccupied with Maiden castle and various other things.

The amendment seeks to include a better definition, effectively through a few simple words, in the same clause that we were talking about previously concerning the meaning of “natural environment”. It would mean that subsection 41(c), which begins

“land (except buildings or other structures), air and water”,

had at the end a clarification that that includes the marine environment.

It seems pretty obvious that that ought to be in the Bill. We are a country with a length of coastline that is almost uniquely extensive in Europe, and we are an island. Obviously, in the UK, we also have extensive inland waterways, such as lakes, rivers and, indeed, man-made inland waterways that have effectively become part of the natural environment, as I am sure hon. Members agree, such that they merit the sort of protection suggested by the definition in this clause. When the Minister replies, will she assure us that man-made inland waterways are included in the definition of “water” in the clause?

At no point does the Bill mention the marine environment. To the credit of Members across the House, we have developed sites of special scientific interest and conservation zones in the marine environment and around the coastline, sometimes quite a way offshore. It is not a question of having the land and the foreshore, and then simply the deep blue yonder. The marine environment must be seen as an integral part of the process of environmental conservation. Our legislation includes substantial activity to enable environmental protection and conservation to take place in those zones.

[Ruth Jones]

My hon. Friend is making a powerful point. During the passage of the Fisheries Bill, we spent a long time considering how to avoid dredgers damaging the marine environment. That should be included in this Bill, so that our legislation is joined up and cohesive, and ensures that the marine environment is as protected as the land.

[Dr Whitehead]

My hon. Friend’s important point underlines the purpose of our amendment and impels me to highlight that this is not just a theoretical question about the protection of the marine environment, but a practical question about how we approach that. For example, the marine conservation zone in Lyme bay has the very practical effect of—among other things—preserving the environment for cold-water corals and various other things in that very fragile ecosystem that require our protection to survive and thrive. Those considerations of the marine environment are absolutely and indistinguishably conjoined.

[Robbie Moore (Keighley) (Con)]

Will the hon. Gentleman clarify the purpose of the amendment? Given that paragraph 355 of the explanatory notes to the Bill states:

“This includes both the marine and terrestrial environments. ‘Water’ will include seawater, freshwater and other forms of water”,

I am not sure what the purpose of the amendment is.

[Dr Whitehead]

The hon. Gentleman has quoted the explanatory note, which is not legislation. One of the problems that Committees face is that explanatory notes have a sort of half-life: they are quite often helpful for elucidation, but they add nothing whatsoever to, or take nothing away from, the legislation in front of us. Explanatory notes might mention what is or is not the case, but essentially they indicate only how benevolently or otherwise the Government look upon the legislation.

[Cherilyn Mackrory (Truro and Falmouth) (Con)]

I am as big a champion for the marine environment as anyone in this room; before this time last year, it was our livelihood. I am struggling to understand the purpose of the amendment because everything in the marine environment is covered by

“land (except buildings or other structures), air and water, and the natural systems, cycles and processes through which they interact.”

I am struggling to see what in the marine environment is not covered by the Bill as originally written.

[Dr Whitehead]

The hon. Member will see that the Bill merely contents itself with the word “water”, which can have a number of different interpretations. In this instance, it has a substantially strong interpretation. This is not a problem with the present Government, but we are talking about legislation that must stand the test of time. It is possible and reasonably straightforward to define “water” in this case as internal waterways, rivers and other water services within the land mass. The hon. Member will see that that is what the clause appears to suggest. The “natural environment” is defined as

“plants, wild animals and other living organisms,”

“their habitats” and “land”, which suggests that the word “water” should be taken in the context of the other things in the clause.

[Cherilyn Mackrory]

With respect, I disagree. What the hon. Member suggests is that the land stops on the foreshore. It does not, of course; it goes straight out to sea and becomes the seabed. The land does not stop. What we are arguing here are the semantics of where our land and our waters end, which will be covered in the Fisheries Bill.

[Dr Whitehead]

The hon. Member is right to the extent that land does extend under the water, otherwise the seas would drain fairly rapidly and we would be in a bad state. According to the hon. Member’s definition, we are conjoined with every other country in the world. The clause does not say that we must have a definition of “natural environment” that includes that—it stops in terms of what is on our land and what is not under the sea, as far as land is concerned. Arguably, the fact that it includes water could be defined, as the hon. Member suggests, as including everything on that land that is under the sea. It is nevertheless our responsibility—there are different areas of concern expressed in international treaties about territorial waters and various other things.

[Anthony Browne]

I completely and utterly support that the definition should cover the marine environment. My question to the hon. Member is why he picks on the marine environment as the one point of clarification needed in “land…air and water”. My hon. Friend the Member for Truro and Falmouth has talked about some aspects of the land, but does it cover soil? Does the hon. Gentleman want clarification on that? Does it cover underground waterways, for example, which are big in my area? The big issue in South Cambridgeshire is the aquifer, which is definitely under the ground. Does it cover cave systems? Is “air” just the air we breathe when we talk about air pollution, or is it also the ozone layer and so on? We could carry on with multiple long definitions and a long train of different qualifications, but I think that would create legal uncertainty for lawyers to interpret. The Bill is very generic—“land…air and water” covers everything that is important.

[Dr Whitehead]

The hon. Gentleman tempts me to go down a detailed path of discussing subterranean water outlets. I assume, because water is within our land mass, that those would be covered by the elision of land mass and water, which is suggested by the clause. Without going into a lengthy disposition about how far under the ground water might be counted as being covered under this arrangement, we can rest assured that those matters are not a serious issue of dispute.

That is why I do not want to go into enormous detail. The amendment is straightforward and short. It proposes several words that would put the matter to rest. It just states in a modest way that the definition should include the marine environment, so that if anyone is in any doubt, there it is in the Bill. That is all we are suggesting. There is no side to that. There are no additional consequences. It merely says we should be clear that that is what it includes. I think we all agree that it should include that.

This morning, we were treated to a quote from the explanatory notes, which indicated that the marine environment should be included, but it is not. We are just doing a modest labour in the vineyard by attempting to ensure that when people say something, they mean what they say. The best way to ensure that people mean what they say is to say it. That is what we propose to do on the face of the Bill.

[Deidre Brock (Edinburgh North and Leith) (SNP)]

Amendments 125 and 193 have similar intentions. My amendment was meant as a probing amendment. I will not revisit the areas that the shadow Minister has eloquently gone through. My assumption was that the marine environment was considered for inclusion here and the decision was taken to exclude it. I would be interested to hear from the Minister what the rationale was for that.

Obviously, marine life is just as vital to the global ecosystem as terrestrial life, and the health of marine environments also needs to be protected. There may be some other agencies responsible, which the Government reckon should do the job, but surely there is a good case to be made for an agency with an overarching view of these tasks and challenges for the whole environment. I look forward to the Minister’s comments.

--- Later in debate ---

[Rebecca Pow]

I thank the shadow Minister for his very kind opening words. I also thank him for his interest in the clause, which is crucial to future environmental governance. I appreciate the sentiments behind the amendment, but I must disagree and say that it is unnecessary. I have thought about this matter a great deal myself, as hon. Friends and Members can imagine. I have also spoken to the Natural Capital Committee at length about this, and it is satisfied with what we have come up with after much discussion.

Hon. Members are aware that the marine environment is by far the largest part of the UK’s environment and, as such, is an enormous part of our natural world. It is therefore vital that we safeguard crucial marine ecosystems, and that is a core part of our environmental policy. One of the names I get in my portfolio is the marine Minister, so I say, “Leave water and the marine space out at your peril.”

That is why the marine environment is included within the existing clause, as is clarified on page 57 of the explanatory notes. I hear what everyone says about the explanatory notes, but the meaning of the natural environment explicitly covers “water”. This includes seawater, canals, lakes, the Somerset levels—which are seawater that has come inland, goes back out, and is then joined by inland water—and all the underground aquifers.

A very good point was made: where do we stop with these lists of things? That is important to remember. The definition also covers—I thank my hon. Friends the Members for Truro and Falmouth and for Keighley for mentioning this—the land that includes the seabed, the intertidal zones and the coastal plains. They are all part of the natural environment. Any plant, wild animal, living organism or habitat is also included in the definition, regardless of where it is physically.

Out of interest, I want to touch on the target-setting powers in the Bill. Targets can be set on any matter relating to the natural environment, which could include the marine environment. That means we can set long-term targets or legally binding targets that can help improve the marine environment. The Government must set out at least one target in their four priority areas, which include air, biodiversity, water and nature. The initial round of targets might include a marine environment target, and that could be one of the biodiversity targets. That measure is already in the Bill; it will actually bolster, protect and strengthen the myriad measures we already have in place for protecting the marine space. All of this will dovetail with the sustainability elements in the Fisheries Bill, which was mentioned by the hon. Member for Newport West, so it is all part and parcel.

I hope I have provided some assurances. The marine environment is very much included within the definition and, as such, each element of the environmental governance framework—including the OEP—will apply to it. On those grounds, I propose that the amendment is unnecessary, and I respectfully ask the shadow Minister to withdraw it.

[Dr Whitehead]

The Minister has given some good and solid assurances concerning what she thinks the clause could be interpreted to mean. Clearly, the fact that she has said that this morning suggests that it might be possible, should there be a dispute about this, to draw upon her words as underlining the Government’s good intentions. We have never disputed that. We are happy that the Minister thinks in that particular way.

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[Rebecca Pow]

Before I begin, it was terribly remiss of me that I omitted to mention the hon. Member for Edinburgh North and Leith when discussing the previous amendment. I meant to do so, but I forgot to pick up my bit of paper. All the hon. Lady’s comments were welcome and duly noted, and added to the general discussion and debate that we had about marine matters. I apologise for that; I meant to do so and then it was too late.

Government amendments 31 and 65 insert the word “advising” into clause 42(d) of the Bill and make the same amendment to schedule 2 in respect of the Office for Environmental Protection in Northern Ireland. This is a technical amendment to ensure that our new environmental governance framework can operate fully and effectively.

Environmental protection is at the heart of what the Bill intends to achieve, and as such it is vital that we ensure that the meaning of environmental protection provided in the Bill is as effective as possible. Without the amendment, statutory duties for public bodies to advise on environmental protection, such as section 4 of the Natural Environment and Rural Communities Act 2006—which we all refer to as the NERC Act—which places a duty on Natural England to provide advice at the request of a public authority, would not be considered environmental law.

The OEP would not be able to monitor or enforce this kind of legislative provision and the Secretary of State would also not be obliged to make a statement about any new legislation in this place. Therefore, not including “advising” in this clause would place unnecessary and unhelpful limitations on our new environmental governance framework. This would limit the Government’s ambition to be a global leader in championing the most effective policies and legislation for the environment. I therefore commend the amendment to the Committee.

[Dr Whitehead]

The Minister’s amendment does indeed clarify matters and enables a better definition for monitoring assessments and reporting. The Opposition are happy for the word “advising” to go into the clause, but I would like the Minister to reflect briefly on why that word, which she is now putting in as an administrative amendment, was in previous iterations of the Bill. It was in the original Bill two years ago and also in the current Bill’s immediate predecessor, which was unable to make progress because of the election. Why is it, then, that the word did not appear in the current Bill? Was it an accident? Did someone consider it inappropriate, and is the Minister now making up for that lapse? Unless it was an accident, could the Minister assure me that there was no underlying reason for leaving out the word, the reinsertion of which now requires a Government amendment, and that she has not mentioned anything that we ought to consider?

[Rebecca Pow]

I thank the hon. Gentleman for that question and for saying that the Opposition are happy with getting the word “advising” into this clause. I think I am at complete liberty to say that it was just a technical correction. I am pleased that it has been spotted and thank the hon. Gentleman for having done so.

Amendment 31 agreed to.

Clause 42, as amended, accordingly ordered to stand part of the Bill.

Clause 43

Meaning of “environmental law”

[Dr Whitehead]

I beg to move amendment 127, in clause 43, page 26, line 6, leave out “mainly”.

This amendment ensures that any legislative provision that concerns environmental protection is included in the definition of “environmental law”.

Clause 43 concerns itself with one word, but, as I think hon. Members will appreciate, it provides, as is the case with many Bills, the crucial underpinning of a particular part—namely, those clauses up to clause 43. In other words, it defines the words we have discussed this morning and on other occasions. Although it may appear that a great deal of debate is focused on very small parts of the Bill—on one or two words—it is important to pay attention to them and to get this right. I appreciate that we may appear not to be making the progress we would otherwise want to make, but this is essential for the overall progress of the Bill. I can reveal to the Committee that I have discussed with the Government Whip exactly how much progress we can make today, and we need to ensure that it is commensurate with getting the Bill through in good order overall. I assure hon. Members—and, indeed, you, Mr Gray—that we want to make good progress and get the Bill through in good order and in good time. I hope that what we do this morning will aid rather than impede that progress.

Clause 43 concerns itself with the meaning of environmental law. Subsection (1) states that it

“is mainly concerned with environmental protection, and…is not concerned with an excluded matter”.

Subsection (2) defines excluded matters. We are concerned about the word “mainly”. We think that legislation that defines the meaning of environmental law should be “concerned with” environmental protection, not “concerned mainly with” with environmental protection. The use of that word implies that a number of other things could be construed as not being concerned with environmental protection. Logic suggests that the inclusion of the word “mainly” admits the possibility and, indeed, the likelihood that there are things outwith that particular definition.

Subsection (2) refers to excluded matters and I think we will discuss some of those in a future debate. Nevertheless, assuming it stands, it defines what is outwith the concerns of environmental protection. The Bill itself puts forward the things that are excluded from consideration, while subsection (1) uses the word “mainly”, which adds another area of uncertainty regarding what is and what is not excluded.

[Ruth Jones]

Does my hon. Friend agree that the term “mainly concerned” is ambiguous, with no clear legal meaning? Indeed, Dr David Wolfe QC drew attention to this issue in his written evidence to the pre-legislative scrutiny of the draft Bill.

[Dr Whitehead]

My hon. Friend is a mine of carefully culled information from previous sittings of the Committee, including the evidence sessions, which underline the points we are making this morning. She has set out that this is not just our concern; it is widely shared outside this Committee Room, and for that reason it deserves additional consideration.

Our case is that the word “mainly” should be removed and that the definition of environmental law should be that it is “concerned with environmental protection”. Subject to concerns that we may have about some of the areas listed under excluded matters, the fact that subsections (1) and (2) sit together should provide a very clear line of discussion about the meaning of environmental law as far as legislative provision is concerned.

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[Rebecca Pow]

Just like the hon. Gentleman, we have also taken a great deal of advice and have used “mainly” for the reasons that I have set out. Although the OEP could still prioritise, it would be unhelpful for stakeholders were the OEP to be concerned in a huge range of issues that have only minor or tangential links to environmental protection or improvement.

It is important to note that the definition is already broader than it might initially seem because it applies to individual legislative provisions, so it could be part of a wider Act or statutory instrument. That means that even if most of an Act or statutory instrument is not mainly concerned with environmental protections, any specific provisions that are considered environmental law would come under the OEP’s remit. It is also worth noting that the term “mainly” is not prescribed in the Bill. The OEP and public authorities will therefore be able to interpret it in accordance with its normal—another legal word—meaning.

I appreciate the intentions of the hon. Member for Southampton, Test, but the amendment is not necessary or appropriate because the existing definition is sufficiently broad and balanced with the need to maintain the OEP’s focus on the protection and improvement of the natural environmental. I therefore ask him to withdraw his amendment.

[Dr Whitehead]

I thank the Minister for her response—she had a good go at it. We will not withdraw our concern, but as the Minister has given some reassurance about how the term “mainly” might be interpreted and has indicated that some thought was given to that prior to the Bill’s drafting, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Deidre Brock]

I beg to move amendment 115, in clause 43, page 26, line 10, leave out paragraph (b).

This amendment removes the exceptions for legislative provisions relating to armed forces and national security matters from the definition of ‘environmental law’ for the purposes of the scope of the OEP’s functions.

I thank the Minister for her kind words and would like to correct myself slightly because I did not welcome her back to her place earlier. I am very pleased to see her and am glad that she has recovered.

The armed forces are potentially among the biggest polluters. The evidence from Scotland demonstrates that there has to be some oversight of the potential for environmental damage. I mentioned that previously in respect of the issues that have arisen. The nuclear bases on the Clyde do some work with SEPA—the Scottish Environment Protection Agency—and local authorities to alert them to some instances, but not all. Even those scant measures are the subject of voluntary agreements rather than obligations or regulatory oversight. No information is forthcoming, however, on the rest of the defence estate across Scotland. I imagine there is nothing about the estates across England either.

We know that the MOD does environmental assessments because it told me so in answer to written questions, but that information is kept secret. That is not good enough. We all have to play our part. As I have said, no individual Department should be completely excused from shouldering that responsibility. The phrase “so far as is reasonably practical” is used in a lot of legislation from which defence and our armed forces are exempt, and it could be too easily used as a get-out when that suited. It is time for that loophole to be removed, and for oversight to be in a place whereby such activities could receive independent and robust scrutiny that—while allowing for sensitivities around national security and similar matters—ensured that activities could be monitored satisfactorily. I look forward to the Minister’s response.

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[The Chair]

We come to amendment 78. It was not moved previously by any member of the Committee, but if any member of the Committee wished to move it now, they would be welcome to do so.

[Dr Whitehead]

I would like to. This amendment, as hon. Members will see, Mr Gray, was tabled by two previous members of the Committee. With the effluxion of time, however, they are no longer members of the Committee, for reasons of ascent—

[Daniel Zeichner]

They have been elevated.

[Dr Whitehead]

Elevated indeed, to higher and more august posts in the Opposition ranks. They are therefore no longer on the Committee, but that does not mean that what they put forward should have less consideration by the Committee.

The fact that additional consideration should be given is underlined by the information that we received just before the Committee met, which was that the Government proposed to table amendments that will come up later in the Bill’s consideration, concerning illegal deforestation in supply chains and the due diligence to be carried out in connection with those supply chains. Hon. Members will see from the latest marshalled list of amendments that those amendments—a new clause, which we will debate later, and a defining amendment that will be debated a little earlier than that—have now indeed been tabled.

The amendments, in essence, adopt substantial parts of another amendment that was tabled by some hon. Friends and will appear as new clause 5, which we will debate much later. This concerns the question of due diligence in respect of overseas supplies of timber, for example, and various other elements such as that. I suggest that my amendment was an essential defining part of new clause 5, which has in effect been run with by the Government in the proposals they have just tabled. There is a complete chain of connection between all those.

In that context, what is missing from the Bill is a definition not just of environmental harm, whether direct or indirect, but of what is meant in that context by the global footprint of environmental harm or environmental activity. By tabling their amendments, the Government are strongly indicating that the global footprint of environmental harm is a key element of the Bill.

I am delighted that the Government have tabled their amendments, because they cover an area that a lot of people have been concerned about for a long time. We will debate the detail when we get to the new clause, but the fact that the Government have considered the issue, listened and looked at what is before us in Committee—

[Ruth Jones]

Does my hon. Friend agree that it is good to see the Government using the important proposal tabled by my hon. Friends the Members for Leeds North West (Alex Sobel) and for Bristol East (Kerry McCarthy) as a stepping stone to improve the Bill? We should welcome the Government doing that.

[Dr Whitehead]

Yes, indeed. My hon. Friend reminds me of the constituencies of our hon. Friends who tabled new clause 5, so I may now refer to them.



The amendments that the Government have tabled are important and we welcome them. We would like to add to our welcome the idea that the definition in the clause––which is, after all, as I have emphasised, an interpretation clause to ensure that we know the content, detail and background––should be placed so that it links not only to what we have already discussed in the Bill but to what is in the Government amendments. This will be our only opportunity to discuss this because, by the time we get to the Government amendments, we will have gone past this section of the Bill, so it is important that we decide this one way or the other today.

[The Chair]

I apologise to the Committee. I had not spotted the fact that this amendment was debated on a previous occasion and that we therefore should not be having a second debate on it but should have moved it formally.

Amendment proposed: 78, in clause 44, page 27, line 24, at end insert—

“‘global footprint’ means—

(a) direct and indirect environmental harm, caused by, and

(b) human rights violations arising in connection with the production, transportation or other handling of goods which are imported, manufactured, processed, or sold (whether for the production of other goods or otherwise), including but not limited to direct and indirect harm associated with—

(i) greenhouse gas emissions;

(ii) ecosystem conversion and degradation;

(iii) deforestation and forest degradation;

(iv) biodiversity loss;

(v) water pollution and abstraction; and

(vi) air pollution.”—(Dr Whitehead.)

Question put, That the amendment be made.

Question negatived.

Clause 44, as amended, ordered to stand part of the Bill.

Clause 45 ordered to stand part of the Bill.

Schedule 2

Improving the Natural Environment: Northern Ireland

Amendment proposed: 194, page 127, line 6, schedule 2, leave out sub-paragraph (4) and insert—

‘(4) An environmental improvement plan must set out—

(a) the steps that the Department intends to take to improve the natural environment;

(b) any steps that any other Northern Ireland department intends to take to improve the natural environment;

(c) long-term targets, setting a measurable standard which must be achieved by a specified date that is no less than 15 years after the target is set; and

(d) interim targets relating to each long-term target, setting a measurable standard which must be achieved by a specified date that is—

(i) no more than 5 years after the target is set; and

(ii) no more than 5 years after the most recent review of the environmental improvement plan.

(4A) It is the duty of the Department to ensure that all long-term and interim targets set in an environmental improvement plan are met and the Department must publish an annual report stating how it is meeting these targets.” —(Deidre Brock.)

The amendment will ensure that Northern Ireland has interim and long-term environmental targets, and places a duty on the Department of Agriculture, Environment and Rural Affairs to ensure these targets are met.

Question put, That the amendment be made.

Question negatived.

Amendment made: 65, page 132, line 1, schedule 2, after “considering” insert “advising”. —(Rebecca Pow.)

This amendment makes provision for Northern Ireland equivalent to the provision made by Amendment 31.

Schedule 2, as amended, agreed to.

Clause 46 ordered to stand part of the Bill.

Schedule 3

The Office for Environmental Protection: Northern Ireland

Amendment made: 66, in schedule 3, page 133, line 33, at end insert—

“(2A) But the OEP must not monitor the implementation of, or report on, a matter within the remit of the Committee on Climate Change.

(2B) A matter is within the remit of the Committee on Climate Change if it is a matter on which the Committee is, or may be, required to advise or report under Part 1, sections 34 to 36, or section 48 of the Climate Change Act 2008.”—(Rebecca Pow.)

This amendment modifies the OEP’s duty to monitor, and power to report on, the implementation of Northern Ireland environmental law under paragraph 2 of Schedule 3. It provides that the OEP must not monitor or report on matters within the remit of the Committee on Climate Change, which is defined in sub-paragraph (2B) by reference to specified provisions of the Climate Change Act 2008.

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[Rebecca Pow]

As usual, much debate and discussion went on. It is all about transparency and clarity for the OEP—[Interruption.] The hon. Gentleman is raising his eyebrows. The Opposition are always seeking to suggest that there is something underhand going on, but I wear my heart on my sleeve, and this is all in the interests of transparency. There is a whole flowchart about how the OEP will remain independent. Schedule 1(17) sets out that the Secretary of State must be aware of the independence of the OEP. It is about giving much more clarity and focus to the way that the OEP will operate.

Amendment 221 is a consequential amendment to schedule 3, which provides an option to extend the OEP’s funtions to apply to devolved matters in the future. As the functions conferred by schedule 3 are devolved, the amendment ensures that, if schedule 3 comes into force, any guidance issued under new clause 24 will not apply to those devolved functions. Amendment 221 is therefore necessary to ensure that new clause 24 is compatible with the devolution settlement in Northern Ireland. It leaves the Government the flexibility to assist the OEP through guidance if ever necessary while ensuring that it remains an independent enforcement body. In the light of that, amendment 221 is essential to ensuring that new clause 24 is compatible with the devolution settlement for Northern Ireland.

[Dr Whitehead]

I do not have any great objections to this clause, but we should reflect on the point made by my hon. Friend the Member for Cambridge. It is a bit shocking that this proposal was not in the Bill previously. This section is about ensuring that the OEP is set up and functions well in Northern Ireland, with all the issues that go with devolved government and the replication of its functions in the Province. Yet the ability to transfer functions on a devolved basis appears not to have occurred to the framers of the Bill before it was put before us. It is only after what in this context we might call the fortunate suspension of the Bill for quite a long time that it has been possible to reflect on that omission and this amendment appears before us. That is a bit concerning, in terms of what else in the Bill might not do justice particularly to the devolution settlements. That is a worry, but we are not worried about the actual content that has appeared. Therefore, we do not want to divide the Committee on this amendment.

Amendment 221 agreed to.

Amendment made: 67, in schedule 3, page 148, line 18, leave out

“the National Assembly for Wales”

and insert “Senedd Cymru”. —(Rebecca Pow.)