Environment Bill

Baroness Bloomfield of Hinton Waldrist Excerpts

Committee stage
Wednesday 14th July 2021 Lords Chamber

[Baroness Jones of Whitchurch (Lab)]

My Lords, I declare an interest as a member of the South Downs National Park Authority. I am very grateful to the noble Earl, Lord Devon, for tabling these amendments and introducing them with such clarity. As the noble Lord, Lord Cameron, said, he was very persuasive. On that subject, we welcome the noble Lord, Lord Cameron, back to his seat—he made his own very persuasive and silver-tongued contribution. I listened very carefully to what he was saying, but I am afraid that, like other noble Lords, I was not totally persuaded. Perhaps it is just because we have not had enough time to consider what seemed, the more we talked about it, to be a more and more complex issue. Forgive me if I do not dwell on that, because I feel I am out of my comfort zone in understanding the implications for the use of common land. Perhaps we can return to that issue at some point when we have more time to debate it in detail.

I return to the amendment proposed by the noble Earl, Lord Devon. We welcome the essential principle of the conservation covenants in the Bill, which the noble Earl said was a result of the Law Commission’s recommendations. As a number of noble Lords have said, there are real concerns as to how these covenants will be applied in practice. The noble Earl said that it was particularly important that smaller farmers understood the full implications of entering into these covenants and are protected from exploitation. He has given some examples of the perverse consequences of historic covenants in the past, and I suspect that they will become more common in future. Already we are hearing in the south downs about farmers being approached by public bodies that want agreements to provide a home for their carbon offset obligations. I have no doubt that those sorts of pressures are only going to increase.

As the noble Earl says, it is in danger of becoming a bit of a wild west situation. It is likely that biodiversity net gain will create a new swathe of developers, public and private, looking to do deals with farmers to offset the damage that they are doing to the environment elsewhere. Already we are hearing talk of environmental stacking, whereby farmers have multiple obligations to different bodies to deliver environmental benefits, with all the legal complexities that would ensue if that became commonplace. Incidentally, this once more underlines the case of my noble friend Lady Young of Old Scone that we need a land-use strategy so that growing food, carbon offsetting and enhancing biodiversity all develop into a coherent policy whole, and we know where the priorities lie.

Of course, these developments could be an advantage to farmers and the environment if they were managed properly, but these agreements need to be managed with care to ensure that farmers are not exploited by big corporate players and their lawyers. That is why the noble Earl, despite being a lawyer, is quite right to pursue these amendments. They would make it clear that the covenant was a formal legal document, signed as a deed, which one hopes would ensure that the farmer received appropriate legal advice.

The noble Earl is also right to probe, in Amendment 274, what organisations that are not public bodies or charities can be defined as responsible bodies for the purpose of this clause. We agree that there are real concerns about for-profit organisations entering this market, with the potential lack of responsibility and knowledge that many of these organisations will have. We need to be assured that all the organisations described as responsible bodies have expertise in conservation. Since many of these agreements will be for the long term, we need to be clear about what happens if a responsible body holding a covenant subsequently becomes insolvent or ceases to exist, or simply sells that covenant on. A number of noble Lords have probed the consequences that could occur from applying those covenants in perpetuity, and the impact that that could have on the individual.

It seems to me that we need answers to this, and the noble Earl’s amendments go a considerable way to addressing it. I also agree with the amendments laying greater duties on the Secretary of State to manage the covenants in those circumstances, particularly in the longer term. As the noble Baroness, Lady Jones of Moulsecoomb, said, what is the point of having the stopgap of the Secretary of State if he is not required to do anything, as is the case under the current provisions?

In conclusion, I very much believe that the noble Earl has made a powerful case for these amendments. Alarm bells are ringing about the actions we need to take to get this right. I hope that the Minister has heard the concerns from around the Chamber. It would be helpful if, as a matter of urgency, she was able to meet the noble Earl—and I hope that we will be able to find a solution and a revised wording of the Bill.

[Baroness Bloomfield of Hinton Waldrist (Con)]

My Lords, I thank noble Lords for their consideration of this part of the Bill. I also take this opportunity to thank the Law Commission, as this part of the Bill is based on its work and the draft Bill that it prepared. Its ongoing support as the Bill has moved through the various parliamentary stages has also proved invaluable.

Conservation covenants are an important and flexible tool for the environment’s conservation and improvement—and I know that there is some frustration that this was not drafted as a specific Bill, but it is right that we legislate for them now rather than waiting. They complement other measures in the Bill, such as biodiversity net gain. Conservation covenants are private agreements entered into voluntarily to deliver long-term conservation outcomes for the natural and heritage features of the land—and I welcome the broad support of noble Lords from around the House, particularly that of the Green Party. Importantly, the legislation allows for covenants to bind successor landowners, which ensures that they can deliver lasting conservation for future generations; the legislation also allows for them to be modified or discharged to cater for changing circumstances.

Amendments 266, 267 and 268, tabled by the noble Earl, Lord Devon, seek to ensure greater formality in the process for creating these covenants. Before I get into the detail, I emphasise again that these agreements are voluntary, and a covenant needs to be exercised as a deed to be entered as a land charge, which I hope goes some way to reassuring noble Lords, including the noble Baroness, Lady Jones of Whitchurch. Conservation covenants cannot be imposed—rather, the parties will need to work together to set them up in line with the requirements set out in the Bill. As these are legally binding agreements, there needs to be a degree of formality, and the Bill’s provisions ensure that there is.

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[Lord Lucas (Con) [V]]

My Lords, I am comforted, to some extent, by what my noble friend has said, but I very much hope that I might be included in the meeting that she proposes between officials and the noble Earl.

It is extremely important to get the practical application of this system right. In particular, I remain extremely cautious about broadening the ambit of responsible bodies to include organisations which are fundamentally commercial. What is needed here are bodies that are fundamentally ecological—that have an established long-term interest in getting the ecology of an area right. National parks obviously come within that—that is not a problem, as far as I can see—but something with a more commercial bent, however ecologically expert it is, seems a very questionable road to go down and likely to result in a great deal of heartache.

When it comes to my own meeting with officials, I will certainly be interested in the way in which perpetuity is so comfortable to them here but is such a problem when it comes to biodiversity gain. I cannot see the logic that goes through here. Biodiversity gain is, by and large, negotiated with people who are well informed, well set up and, in particular, stand to make a large amount of money from a transaction where the costs of the biodiversity gain are not going to be substantial. Here, we are dealing with people who are in a very different relationship with the responsible body.

Perpetuity seems to me to be right, because we are trying to do something for the very long term—but it has to be perpetuity with flexibility. To have perpetuity without flexibility, as we have here, or flexibility without perpetuity, as we have with biodiversity gain, seems the wrong road to go down. I very much hope that we will make some progress on that between now and Report.

[Baroness Bloomfield of Hinton Waldrist (Con)]

I believe that the Government and my noble friend are in agreement on the criteria for selecting a responsible body, whose main purpose or function must relate to conservation. I would be delighted to include him in a future meeting with the noble Earl, Lord Devon, and officials and perhaps we could address some other concerns at that meeting.

[The Earl of Devon (CB)]

My Lords, I am grateful to all noble Lords who have participated and voiced, in general, considerable support for the amendments that I have proposed. It is particularly pleasing to hear support from the Green Party—despite the aristocratic proposer of these amendments—and from other Benches; it is much appreciated. I am pleased to hear that the Government take these amendments seriously and are willing to meet me; I look forward to that meeting.

A number of points were raised. The noble Earl, Lord Caithness, raised the issue regarding landlords and tenants. As I read the legislation, tenants will be able to enter into conservation covenants so long as they have at least seven years left on their tenancy. Of course, what happens on reversion of the tenancy once they have converted a farming field into a bog is yet another complexity that I did not have time to get to in my hypotheticals.

I also appreciate the support from the noble Lord, Lord Lucas, but, contrary to him, I think there is a role for for-profit companies within this marketplace. It is an exciting opportunity for environmental land management to bring in private finance but, if we are to do that, we absolutely must control and manage it, which is what these amendments are designed to do.

I thank the noble Baroness for the Government’s reply; she suggested that covenants can be easily modified or discharged in sites in application to the lands tribunal. In response to the Law Commission’s inquiry, the Bar Council pointed out that even the most modest application to the lands tribunal costs at least £50,000, and I am not sure that a small farmer would be willing to spend that to modify a covenant. She says that, to be registered as land charges, they must be executed by deed. I do not see that in the legislation and, as I understand it, they have effect as land charges even if they are not registered, so they still have this quasi-governmental function. As I understand it, they also continue to permit the responsible body to enforce exemplary damages, whether they are registered or not. Those are very significant impacts.

I am afraid that the noble Baroness may have misunderstood my Amendment 274, because it did change. The amendment is to the provision that applies to the for-profit, non-charitable, non-local authority entities. My aim is to ensure that any entities designated thereunder have conservation as their core function because, at present, the legislation does not permit for that. It is absolutely important that, if we are to have private enterprises involved, they need to be conservation enterprises; they cannot be banks that are just seeking to make a profit in developing an ecosystems services arm.

Finally, as to Amendment 276, while it is right that conservation covenants should be preserved, the reason why large payments will be made under them is because the landowner—the farmer—has to spend a lot of money maintaining the land in that way. If no payments can be made by the Secretary of State when that person takes responsibility for the covenant, there will be income for the land to be maintained in the way that it is meant to be. If payments are not made, the conservation purposes will necessarily fall away or the farmer will once more go bankrupt. There are a huge number of issues to be dealt with here. I do not think it is enough that this can just be packed in at the back end of Committee; we have a lot more work to do and I look forward to meeting the Minister and the Bill team. On that basis, I beg leave to withdraw the amendment.

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[Baroness Hayman of Ullock (Lab)]

My Lords, I offer our strong support to Amendment 293E in the name of my noble friend Lord Whitty. I thank my noble friend for his detailed and knowledgeable introduction, explaining why it is so important we do not have non-regression in chemicals industry regulation. Plans as to how the Government intend to regulate the UK chemicals sector following Brexit and our departure from EU REACH have been of significant concern for the UK chemicals industry for some time. This amendment would remove the possibility that a Secretary of State might lower current standards, while enabling them to easily meet or exceed new EU protections and standards. It would also oblige the Government to transparently justify any decision to deviate from EU control on chemicals—noble Lords have talked about the importance of transparency.

Concerns were raised by the noble Baroness, Lady Bakewell of Hardington Mandeville, that provisions in the Bill give the Secretary of State the power to alter the UK REACH system, including through deregulation, which is causing instability. Concerns have also been raised about the potential for a reduction in protections and standards. The noble Baroness, Lady Bakewell of Hardington Mandeville, also talked about the potential for a toxic mix of chemicals, as we have heard in other debates during the progress of the Bill. The UK is already falling behind EU protections. Divergence is set to widen over time, despite assurances that the UK would not diverge for the sake of it, and this brings with it considerable associated economic and political costs. I would be interested to hear from the Minister the Government’s perspective on this divergence and how they will manage it. The current regulatory processes for GB controls lack transparency and do not match the pace of EU action. They also do not appear to consider or attempt to mitigate the effects of divergence. My noble friend Lord Whitty mentioned the issue of new chemicals in particular, and how that is being managed.

Going back to our negotiations on Brexit, it was hugely disappointing that the Government ruled out what we believe would have been the best outcome for both the environment and human health, as well as for industry: for the UK to remain within the world’s most advanced system for regulating hazardous chemicals, the EU REACH system. The decision instead to set up UK REACH will substantially increase costs and bureaucracy for UK companies, while bringing real danger through the reduction in protection for the public, workers and the environment from hazardous chemicals. But we are where we are, and the priority now has to be for UK REACH to be the best it can possibly be.

The provisions in the Bill present an opportunity to ensure that UK REACH reflects available scientific evidence and allows for a regulatory environment which is fit for purpose. The noble Earl, Lord Dundee, said we now have an opportunity for higher standards, and I agree with him. Schedule 20 gives the Secretary of State wide-ranging powers to amend the UK REACH regulation and the REACH Enforcement Regulations 2008. Such amendments would have to be in line with Article 1 of REACH, which outlines its aim and scope. Several provisions are protected from modification by SI under these powers. However, we are concerned about granting the Secretary of State such a sweeping power to amend the main UK REACH text, which could then be used to reduce the level of protection for the public and the environment from hazardous chemicals. My noble friend Lord Whitty talked about the potential for huge damage if we do not manage our chemicals industry correctly.

There are many concerns from industry about access to data and divergent sources of data: different data can mean different decisions. The noble Baroness, Lady Bennett of Manor Castle, talked about a lack of data undermining HSE’s ability to do its job properly. Now that we have left the EU, the UK does not have access to the same EU databases and the 98,000-plus dossiers of commercially sensitive safety and technical data for more than 22,000 substances. I have spoken many times in this House and the other place about my concerns about the risk of duplicate animal testing, and I know other noble Lords are concerned about this. We have had assurances from the Government, but no real explanation about how it is going to be prevented. When scientists and technical review panels cannot see the same scientific data and cannot discuss this data with scientific counterparts in the EU, inevitably we could find that different decisions are being drawn.

My noble friend Lord Whitty talked about his concerns around divergence by default. In a divergent regulatory system, the Government must be careful to avoid any lowering of our current high standard of environmental protections and increasing risk to public health, solely for the purpose of quick, short-term economic international trade wins or rapidly rolled-out innovations. I ask the Minister for her reassurance that this will not happen. Furthermore, a divergent chemicals regulatory system in the UK will bring additional cost burdens to business and, if standards are lowered or untrusted, will bring consequences to the ability to trade products with the EU. The noble Baroness, Lady Neville-Rolfe, talked about the burdens on business if we do not get this right. We have to put safety first and consider the impact on the environment.

Significant divergence giving the UK a competitive advantage risks triggering rebalancing measures by the EU, such as retaliatory tariffs, under the EU-UK Trade and Cooperation Agreement. Remaining closely aligned with EU REACH would ensure that UK consumers and the environment continue to benefit from the EU’s relatively high protections as they continue to improve, and would also avoid unscrupulous manufacturers dumping products in the UK that fail to meet EU standards. The amendment we have been debating would provide important benefits and protections from damaging divergence that could lower standards. I urge the Minister to consider the benefits of supporting it.

[Baroness Bloomfield of Hinton Waldrist (Con)]

My Lords, I thank the noble Lord, Lord Whitty, for his Amendment 293E. As I have outlined in previous groups, the Bill will enable the Government to update our REACH regulation to ensure it keeps pace with the latest scientific developments and to prevent our chemicals regulation becoming frozen. I start by reassuring the noble Lord that there are already several safeguards included in the Bill. Changes to the REACH regulation have to be consistent with Article 1 of that regulation, including ensuring a high level of protection for human health and the environment. The Secretary of State must publish an explanation of why he considers that to be the case before making any changes.

I know the noble Baroness, Lady Hayman, was particularly concerned about the powers that the Secretary of State is taking to amend this. An ability to make supplementary, incidental, transitional or saving provisions is a standard provision in legislation. The aim is to make sure that 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. To take an example, Article 35 of the REACH regulation is a protected provision which gives workers the right to access information that their employer receives under other provisions of the REACH regulation, Articles 31 and 32, concerning a chemical substance or mixture they use or may be exposed to. If we were to extend the scope of those other REACH provisions to also cover information about substances in articles, we would want to amend Article 35 to reflect these changes.

I should say at the outset that both the UK and the EU recognise that EU REACH is part of the single market. Access to EU REACH or associate membership of the European Chemicals Agency are tied to the single market, and the EU insisted on this. The Government have already made it clear that we would not accept being subject to the European Court of Justice, and associate membership would mean just that. However, the EU-UK Trade and Cooperation Agreement still provides for co-operation between the EU and UK chemicals agencies.

I should also stay at this juncture that, while I take the point about the larger resources that EU REACH has, Defra has asked HSE to work on two restrictions to date. I know that, normally, the EU would probably do five or six a year, but we have a significant time advantage: even with the Secretary of State asking the devolved authorities’ consent, we still have a speed advantage because we do not have to get agreement from 27 countries, which, in chemicals terms, can actually take many years.

We have also provided over 20 provisions relating to the fundamental principles of REACH, listed in the table in paragraph 6 of Schedule 20. They include: the “no data, no market” principle; the last resort principle on animal testing; the aim of progressively replacing substances of very high concern through the authorisation process; the effect of restrictions; the importance of communicating information to the public on the risks of substances; and various provisions to ensure that UK REACH will be properly transparent.

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[Baroness Neville-Rolfe (Con)]

I rise to ask two questions, which I think have been answered. One is about microplastics and how they are covered by REACH; in writing to the noble Baroness, Lady Bakewell, it would be extremely helpful if the Minister could copy me in too. They are a genuine area of concern. Secondly, I want to pursue the idea of a business-led review of REACH, not to undermine environmental standards but to make sure that the nonsenses of this area are tackled. I would be very happy to talk to my noble friend about that.

[Baroness Bloomfield of Hinton Waldrist (Con)]

I am very happy to take both issues back to the department.

[Lord Whitty (Lab) [V]]

My Lords, I thank the Minister for that reply, which attempted to reassure me—I am not sure it did entirely. I also record my thanks to the noble Earl, Lord Dundee, the noble Baronesses, Lady Bakewell and Lady Bennett, and my noble friend Lady Hayman for their support for this amendment.

The Minister attempted to be reassuring, but the wording of Schedule 20, introduced by Clause 133, does not give the cast-iron guarantee that she appeared to be giving. I appreciate that there are other developments in this Bill and elsewhere which would restrict her or any future Minister’s freedom of manoeuvre in this area, but an explicit requirement to report to Parliament if they intend not to follow the EU level of protection is important. I do not think that the combination of Schedule 20 and the text of the Bill delivers that. I ask the Minister to get her officials to have another look at it, but if she were forthcoming with an alternative amendment herself I would certainly have a look at that.

Chemicals have been a great boon to mankind. The chemicals industry is one of our great successes in industrial life, but it has also been shown to be quite damaging in a number of serious respects. The misuse of chemicals, the wrong disposal of chemicals, the wrong combination of chemicals and the wrong application of chemicals to humans, products, the landscape and the environment have caused a large number of problems. It was therefore important that Europe, when we were members, developed an effective system of regulating chemicals; effectively, if there was no data indicating their safe use, they would not be given access to the market. That is the basis of REACH.

I was interested in the views of the noble Baroness, Lady Neville-Rolfe, and I know that she reflects serious concerns from parts of industry. On this one, I think she is slightly out of date. It was certainly true when REACH started to be established, from 2007 roughly, that there was considerable concern throughout the chemicals industry that the regulations and the data required would be too burdensome, prevent innovation and cause difficulties for the sector. That concern continued for a number of years, but two things have happened since.

First, public concern about the impact of chemicals on human health and the environment has seriously grown, and so likewise has the industry’s recognition that it needs a robust system of regulation to which it can be party. Secondly, the REACH system has bedded in across Europe. As I said in my speech, we must recognise that the European chemicals industry is pretty pan-national, in terms of both large companies and small companies with which they have a supply chain or a contractual arrangement, as well as importers and exporters. There is a lot that the industry has had to get used to, some of which it did not initially like, but it has now proved a rather more effective system of regulation than some others in the armoury of the European Commission, I would argue, and certainly much more accepted, both scientifically and by those who are concerned, and by the industry itself. It was therefore a bit of a surprise to hear the noble Baroness express such concerns—there may be some companies still upset by it, but in general it has been accepted.

I also think that the decision to duplicate on the same basis, in effect, as the European system has caused some frustration to industry but it is that duplication, rather than the essence of the European regulatory structure and regulatory process, that is causing any irritation now. That may also settle down. What I hope for in terms of those who are looking for protection from the impact of chemicals is that the HSE, Defra, the Environment Agency and everybody else who is involved in this area develop a speed of reaction that matches that of Europe. If they do that, then duplication ceases to be quite so important.

At the moment, that is not the case and we therefore potentially have three different sorts of divergence. We have a divergence because Europe has moved on but we have not got round to doing it—I call that divergence by default. We have divergence because the UK has decided explicitly that it wants a rather different system that would be less restrictive than Europe. We have divergence because the UK has decided that it wants better regulation. Both of those are possible under my amendment but they have to be explained to Parliament and justifiable in the terms of the original REACH proceeding. I do not think that the wording of Schedule 20 gives that degree of certainty. We need more clarity, not less. We need more understanding of what we are trying to protect in the chemicals regulation in terms of its impact on human health, animal health and welfare, wildlife and everything else this Bill is concerned with before we try to change the system significantly.

Therefore, this is an attempt to ensure that there is no regression, that any divergence is beneficial and that it is clearly explained to Parliament. I hope that the noble Baroness, Lady Neville-Rolfe, and others who might oppose this amendment recognise the importance of that. However, I take comfort from the support around the rest of the Committee for at least the principle of this amendment. In the meantime, I will withdraw it and we will, no doubt, come back to something like this on Report.