Environment Bill

Baroness Jones of Moulsecoomb Excerpts

Committee stage
Wednesday 30th June 2021 Lords Chamber

Debate on Amendment 103 resumed.

[Baroness Jones of Moulsecoomb (GP)]

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

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

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

“no later than two years”

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

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

The Secretary of State is then obliged to

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

to the report within three months.

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

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

[Lord Rooker (Lab) [V]]

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

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

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Moved by

[Baroness Jones of Moulsecoomb]

104: After Clause 36, insert the following new Clause—
“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) A penalty notice may not be issued before the earlier of—(a) the end of the period within which the authority must respond to the decision notice in accordance with section 35(3), and(b) the date on which the OEP receives the authority’s response to that 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, Mayors for combined authority areas and local authorities for the treatment and research of illnesses related to air pollution.(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.”

[Baroness Jones of Moulsecoomb (GP)]

It is my pleasure to open the debate on this group. It includes some amendments from some very esteemed noble Lords which I will no doubt comment on at the end. While all these amendments take different approaches, what is common is that we all recognise that this Bill will fall far short of what is needed without some significant changes to the enforcement mechanisms. I would not dare to disagree with a group of noble Lords that includes the noble Lords, Lord Anderson of Ipswich, Lord Krebs and Lord Duncan of Springbank, and the noble and learned Lord, Lord Thomas of Cwmgiedd.

These amendments can meld into something extremely positive. For example, the proposals by the noble Lord, Lord Anderson, will significantly improve the judicial process for environmental review. In particular, they remove from the Bill the absurd provision whereby an adverse ruling does not affect the validity of a government decision.

My amendment and Amendment 107A, tabled by the noble Baroness, Lady McIntosh of Pickering, take enforcement one step further. Our amendments recognise that there is a whole realm of conduct that goes further than a judge giving the Government a strong telling off, and which may require actual penalties to be issued. Amendment 104 would enable penalties to be issued, taking into account a whole host of factors such as the gravity of the failure, any intention of negligence, and previous failures by the authority. The inclusion of the principles of effectiveness and proportionality makes my amendment wholly reasonable, and is necessary for ensuring that the ambition in this Bill is not trashed by poorly governed public authorities.

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[Lord Goldsmith of Richmond Park (Con)]

I thank my noble friend for her comments. I hope I addressed fines and why the prospect of being held in contempt of court is a far greater concern for a Minister than the prospect of the department that Minister belongs to being fined by a Government and the money being recycled through the same Government.

I reiterate that the system we are replacing is not one that can fine those chemical companies or even local authorities—it can deal only directly with member states—so the remit here is far greater than the remit of the system being replaced. I understand that we may have to agree to disagree, but I refer my noble friend to my argument in relation to fines earlier in the discussion.

On her first point, I am of course very happy to have meetings with any number of noble Lords to discuss these issues, as I have throughout this process.

[Baroness Jones of Moulsecoomb (GP)]

My Lords, I thank the Minister for his comments, especially about continuing dialogue and revisiting this; that is incredibly important. I thank all noble Lords who have contributed. It is obvious that we all think there are problems with the Bill. I hope that not just the Minister is listening but the Government, and that they understand the depth of concern we are expressing here.

The noble Lord, Lord Khan, called my previous summing-up speech “candid”. At first I thought that was a compliment, but then I thought that it actually sounds like something out of “Yes Minister”, when the civil servant says: “Yes, very brave, Minister—very candid.” I hope I am candid, but at the same time I try not to be rude—I do not always succeed.

I welcome the support of the noble Lord, Lord Anderson, however tentative, and thank him for his examples. Quite honestly, I wish I had asked him to present my Amendment 104. I think he would have made a superb job of it, and I look forward to him using his teeth on Report. Quite honestly, if it comes to a challenge between the Government and the noble Lord, Lord Anderson, my money is on him. He has my full backing.

The noble Baroness, Lady McIntosh of Pickering—I sympathise with her visit to the dentist and hope she is feeling better—is right to say that our amendments take things forward. I will be keen to push this on Report.

The noble and learned Lord, Lord Thomas of Cwmgiedd, used an extremely good phrase about working for future generations that I wish I had used. That is absolutely crucial when we are dealing with this Bill. It is not just for now, the next six months or the next few years but for future generations. He was also quite generous when he said that the Government believe in the rule of law. I have huge respect for the noble and learned Lord, but I am not sure that is true. I think the Government talk about the rule of law but do not actually observe it; that is my observation of how they behave. We must trust the judges, as he says.

The noble Lord, Lord Krebs, for whom I have huge respect, said that the office for environmental protection has to wield a big stick. That is absolutely right; it has to have the authority and the power to achieve all sorts of things. He also felt that Amendments 104 and 107A were a step too far, but I do not see why that is a valid argument. Quite honestly, giving up money hurts, and somehow we have to make it punitive.

The noble Earl, Lord Caithness, said that the OEP has to be independent and authoritative; that is absolutely right. He also said that financial penalties can be effective but then suggested that, because the money was recycled, perhaps it was not that effective. Again, I disagree. It is not only the pain of the penalty but a visible example of the fact that the Government are wrong.

I thank the noble and learned Lord, Lord Hope of Craighead, for his support. He emphasised the value of case law—something that was used a lot when we were in the EU—where the Government are really held to account.

The lay woman’s view from the noble Baroness, Lady Young, is extremely valid and very cogent. I thank her for her support.

The right reverend Prelate the Bishop of Gloucester talked about leadership and COP 26. The fact is that we need an Environment Bill that will look good on the statute books when we get to COP 26, or our Government will be seriously embarrassed. The fact that the OEP will have fewer resources than the preceding body is a matter of huge concern. She also said that the window for action was closing, which is absolutely true, not just of this Bill but of all our actions on the climate emergency. At the moment we are seeing endless examples of very unusual weather patterns, whether in Canada or over much of Africa. We have to understand that we have to act urgently.

The noble and learned Lord, Lord Mackay of Clashfern, pointed out the illogicality of the Bill—I really enjoyed that—and the fact that environmental law is seen as a grade below other law. That is absolutely true. I think Defra has much lower status than other parts of the Government, and that is a terrible shame. It should be involved in absolutely every part of government.

I was delighted to hear the noble Lord, Lord Cormack, with his customary common sense, support the polluter pays rule. Of course polluters have to pay and the Bill has to stand the test of time. He said that it is “riddled with absurdity”. I wish I had said all this; it is much tougher than what I said.

The noble Lord, Lord Duncan of Springbank, freed from the shackles of collective responsibility of his ministerial post, has joined our forces—I welcome him—and spoke strongly about the need to give real teeth to the new system of environmental protection. I thank the noble Baroness, Lady Parminter, for her support of Amendment 104. She made the very valid point that the Scottish body is more powerful. Why would we do less than our Scottish cousins? The idea that the Government are using the term “world-beating” alongside the words “office for environmental protection” here in England is ridiculous.

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[Baroness Bakewell of Hardington Mandeville (LD)]

My Lords, I speak to Amendments 141 and 142 to 145, which are in my name. Amendment 141 relates to the plastic packaging tax, which was placed in law by this year’s Finance Bill and will come into effect next year. The tax is welcome in principle, but my amendment seeks to probe the Government on the detail. Manufacturers of innovative compostable packaging solutions are aghast that the tax makes no distinction between their products and old-fashioned polluting plastic. Members of the Bio-based and Biodegradable Industries Association have attempted to engage Ministers in Defra and the Treasury on this point but are hitting a brick wall, since the Government are interested only in a single threshold —namely, the amount of a given product that is recycled.

It is of course a fine public policy objective to encourage the use of recycled rather than virgin plastics, as the tax attempts to do, but that single criterion fails to recognise a few facts of life. First, packaging that is to come into contact with food cannot be recycled, for food hygiene reasons. Secondly, plastic films are extremely hard to recycle and, even if they are recycled, are seldom if ever recycled into new films. The idea of a circular economy on such packaging is just an illusion.

By contrast, compostable films can be an appropriate substitute and are more sustainable than conventional films from recycled sources. Compostable packaging can never contain 30% recycled content because its destined end of life is to disappear completely in the soil, leaving no microplastics behind. The unintended consequence of the tax as it stands is that these innovative solutions are perversely penalised.

The amendment asks the Government to recognise that treating independently certified compostable films as separate and distinct from conventional plastics would not create a free-for-all or a loophole. The compost quality protocol sets out clear safeguards for waste-derived compost, including by specifying that any compostable packaging and plastic wastes accepted must be independently certified to meet composting standards. Among these is BS EN 13432, referenced in the amendment, which is a strong, internationally accepted British and European standard for determining which bioplastics are industrially compostable or biodegradable when processed through anaerobic digestion or in-vessel composting. As I said in the debate on the first day in Committee, these materials are not a silver bullet but they are rightly recognised by the recent report Breaking the Plastic Wave as part of the picture when it comes to tackling plastic pollution.

Amendments 142 to 145 are related to Amendment 141. If we believe that compostable alternatives to conventional plastic have a place, particularly in food-contact packaging, it follows that we should make provision for those compostable materials to be collected so that the end-user knows that they are indeed composted. Alternatively, householders can mix them with their garden and kitchen compostable waste. As a consumer, it is baffling to pick up something that is labelled “compostable” if you have no obvious means of composting it.

The Bill rightly places in law the necessity for separate food waste collections, and my Amendments 142 to 145 simply seek to establish that independently certified compostable materials should be collected alongside this waste stream. The films that we are talking about here are of low density and can easily fit in a food-waste caddy. Indeed, in certain applications, such as the compostable bags containing bananas in Waitrose, the packaging can be used as a liner for a food caddy.

The present custom and practice of local authorities and their waste management firms is rather variable when it comes to these compostable items. Some faithfully ensure that compostable films are properly processed. Others actually strip out compostable items, treating them as contaminants. It cannot be right for consumers to be sold products that are compostable but for the waste management system to let them down at the end of the process by incinerating or landfilling these items. I shall refer to this issue in later amendments.

Approximately 45 composting plants in the UK are approved for composting inputs that include food waste at present, but the current network processes only 20% of what will be necessary from 2023 onwards. In consequence, much of the 80% extra capacity that must be built will be entirely new or revamped plants. Waste managers need a clear steer now that anaerobic digestion plants must have a composting phase in which compostable materials, such as BS EN 13432-certified packaging, are properly processed. Handling this issue properly has the potential to reduce the contamination of soil from normally polluting plastics, which is why it has the support of the National Farmers’ Union. With these amendments added to the Bill, it would be clear that as composting infrastructure is expanded across the UK, all composting plants must make provision for ensuring the proper processing of compostable packaging materials.

Finally, I turn to Amendments 130A, 130B and 141A, also in this group and capably moved and spoken to by the noble Baroness, Lady Jones of Whitchurch. I fully support her in these amendments. As the adage goes, sunlight is the best disinfectant. Transparency about the sheer amount of plastic used by supermarkets would catalyse consumer pressure on the big players to kick their plastic habit. I commend the work that Iceland has done, which the Minister mentioned on our first day. The transparency clause in Amendments 130A and 130B would push other firms in a similar direction. The Minister will by now have received the message that I am not going away on this issue, and I look forward to his response.

[Baroness Jones of Moulsecoomb (GP)]

My Lords, yet again, the noble Baroness, Lady Bakewell of Hardington Mandeville, makes a soft threat to the Minister about not going away, and I support her completely. This is a really interesting group of amendments, all incredibly sensible. I have signed, with delight and surprise, Amendment 140 in the name of the noble Lord, Lord Blencathra, but my noble friend Lady Bennett will speak to that and I will speak to the others.

We all know that banning the use of single-use plastic has been far too slow. Many Members of your Lordships’ House have mentioned this many times and urged the Government to do something about it. The Chief Whip is waving at me; he is probably telling me, “Go on! Go on!” We have to reduce the absurd amount of plastic we are still churning out every single day when we know the danger that promises. The Government keep on publishing plans and strategies and promises and consultations and all sorts of things, but nothing actually happens. We just have to do it.

I spoke previously about how plastics, and microplastics in particular, will in future be seen in a similar light to asbestos—a substance with miraculous properties but such a huge danger to health that it is phased out almost totally from general use. That is how I would like to see the future of plastic.

The Government and Parliament have vital roles in the transition away from mass plastic. Industry, PR and lobbyists will bleat on about industry-led transition, but this is just greenwashing most of the time. For as long as you can buy bananas wrapped in plastic, you can know that the industry claims are nonsense. I realise that Iceland has taken some huge steps and is an example to other similar supermarkets. I do not eat much from Iceland, but I do support its initiatives. Parliament has to legislate, and the Government have to lead.

The noble Baroness, Lady Bakewell of Hardington Mandeville, also raised compostable plastics. It is an important issue, not least because of the confusion they cause. Some are home compostable in a regular back garden compost heap and will completely break down into safe, organic matter. Others will not break down except in special conditions in an industrial compost facility. There is a whole public education issue there, and not even the waste authorities seem to have worked it out yet. There is no common ruling or understanding. It seems a real shame that compostable plastics are not being collected by council waste services and are, instead, wrongly going to landfill or contaminating the plastic recycling stream.

I hope the Government have a plan for this; it is one of many issues where central government absolutely must get a grip on local authority recycling services and set basic minimum standards across the country. This is something many of us have been asking for for a long time, and it is time the Government listened.

Lastly, the noble Earl, Lord Caithness, said at one point that the cheapest is not the best. Of course, the cheapest immediate option is often one of the most expensive if you look over its lifetime. He is absolutely right: the cheapest is not the best. We have to look at and understand the future repercussions of everything we do.