Environment Bill

Debate between Baroness Noakes and Lord Berkeley

Committee stage
Wednesday 14th July 2021 Lords Chamber

[Lord Berkeley (Lab) [V]]

My Lords, it gives me great pleasure to follow the noble Baroness in this grouping. I am not sure why we have been grouped together but I think it will work well and I am sure that her advice on some of the things I am going to say will be welcome, if not during the debate, maybe later on.

This is a probing amendment. I first need to tell the House that I am not opposing the clause but this is the only way I could find, with the help of the excellent clerks, of coming up with something that enabled me to start a debate on something that I think is quite important in a Bill that is as wide as this and, of course, includes issues, as the noble Baroness said, about the Prince of Wales’s support for small farmers. I certainly welcome that. He is right.

When it comes to the Crown, however, it gets a bit more complicated. I think noble Lords will know that the Crown normally comprises four elements: the Crown itself and its public element; the Duchy of Lancaster; the Government, or various government departments; and the Duchy of Cornwall. It is clear to me that the Duchy of Cornwall is different, as it claims to be in the private sector, which means that one ought to look at the role of the Duchy of Cornwall and the benefits that it gets rather separately from the other three parts of the Crown. As the noble Baroness said, of course, one issue is the Crown exemption clauses, which sometimes avoid the Crown needing to comply with legislation. I shall come back to that. I therefore have a number of questions for the Minister, which I suspect he will not be able to answer today, but I would be very pleased if he could write to me on them.

As I said, there are three categories of Act in relation to the Crown. I am very grateful to a good friend of mine, Dr John Kirkhope, who is a real expert on this. He has helped me with what I am about to say, because it is quite complicated. First, there are Acts in which the Crown enjoys Crown immunity, which includes leasehold reform Acts, income tax Acts, et cetera. Secondly, there are Acts which bind the Crown, but if an Act does not say that it binds the Crown, it does not. Then there is a third category: those Acts that bind the Crown but where there is no criminal sanction if the Crown is in breach; these have what are called Crown exemption clauses. Of course, this brings me back to the Duchy.

Therefore, I have a number of questions on parts of the Bill and the effect it may have on the different parts of the Crown—be they the Duchy of Cornwall or the other parts—which I want to pose to the Minister. I start with Clause 30(3), which relates to the OEP and defines “public authority”. It appears that the definition does not include the Crown, as defined in Schedule 18. Does that mean that the power of the OEP does not extend to the Crown? In particular, does it extend to the Duchy of Cornwall? Next, does Clause 49, in Part 3, apply to the Crown? In other words, if any Crown body is found to have dumped waste, would it be subject to the various sanctions outlined? Again, which Crown bodies are we referring to?

I note many references to the Environmental Protection Act 1990, but if noble Lords refer to Section 76 of that Act, in relation to the Isles of Scilly, or, more particularly, Section 159, it includes Crown exemption clauses. This means that there is no criminal sanction if the Crown—which includes the Duchy of Cornwall, where I live—is in breach.

I can go on. Another example is Schedule 21 to the Environment Act 1995, which includes a similar provision, to which reference is made in Clause 63 of this Bill. I also refer to Section 77 of the Water Industries Act 1991, Section 221 of which provides Crown exemption. I will not go through any more of these references in the Bill, but I am sure noble Lords have got the picture. Therefore, my question is: to what extent do all these references to other pieces of past legislation bind the Crown? Do they bind all parts of the Crown, or do they bind only the Crown, the Duchy of Lancaster and government departments, and not the Duchy of Cornwall?

Before putting down this question of whether the clause should stand part, I did think of trying to draft some amendments on this, but it is incredibly complicated. I would really welcome the opportunity to sit down with the Minister and his officials to see whether there could be some response which would clarify the Crown exemption clauses and where the Crown is and is not included. One suggestion would be to table an amendment which says that the Act binds the Duchy of Cornwall; that is another option. It is very complicated, but it is very important that the Crown and the Duchy of Cornwall are recognised for what they are and whether they should be included or not, and whether there need to be even some changes to previous legislation to clarify this, otherwise there is a danger that the Bill—which has some really good parts; we have discussed much of it over the last eight sessions—could get even more complicated. I trust that is helpful to the Minister and look forward to his response in due course.

[Baroness Noakes (Con)]

My Lords, it is a pleasure to follow the noble Lord, Lord Berkeley, who always raises such interesting points. I agree with him that it is rather odd that his clause stand part debate has been grouped with my noble friend Lady Neville-Rolfe’s amendment. I will concentrate my remarks on my noble friend’s amendment, to which I have added my name. I have not hitherto taken part on this Bill, though I have sat in a few times and read quite a bit of the record of proceedings in Hansard, but my noble friend’s Amendment 297A has tempted me in from the sidelines.

Bills such as this one, which are full of good intent and focused on issues that some are passionate about, often get very little scrutiny of their costs and the consequences of actions taken under them. At Second Reading there was very little focus on that. There were just two shining exceptions. The noble Baroness, Lady Fox of Buckley, emphasised the need for government policies to be prioritised and to ensure that actions taken under the Bill did not, for example, harm economic growth policies. The noble Lord, Lord Vaux of Harrowden, drew attention to the fact that actions taken in the interests of the environment involve trade-offs and that there was a lacuna in the Bill in respect of considering economic impacts when setting targets under it. I know that my noble friend Lady Neville-Rolfe has several times raised the issue of the costs and benefits of the Bill in Committee, and I am glad that she has tabled Amendment 297A to ensure that regulations made under the Bill’s powers are rigorously assessed.

My noble friend’s amendment gives the Government the benefit of the doubt for the first regulations laid under what will be an Act, and I know that my noble friend the Minister has said several times during Committee that full impact statements will be prepared for each of those regulations. The trouble is that impact statements are narrowly defined by the Cabinet Office and suffer from many defects. They commonly understate costs or do not cast the net wide enough to capture all of them. The analysis is typically based on identified persons or bodies, or groups of them, and hence fails to capture whole-system impacts, such as macroeconomic impacts. Impact statements often overstate the benefits or take a macro-level calculation of benefit and use that to frank all the micro-level actions, as the impact statement for this Bill does in respect of a global assessment of potential biodiversity gain. They are also generally optimistic about things such as new opportunities for businesses to innovate. The huge impact statement issued for this Bill suffers from most of these defects and is not decision-useful for assessing its impact.

I very much doubt that the final impact statements for individual regulations will be much better because of these structural deficiencies. The virtue of my noble friend’s amendment is that she allows a five-year period—capable of extension—to gain evidence of the impact of measures. In addition, the amendment calls for a broad evaluation, not a narrow Cabinet Office-style impact assessment, before any regulations are allowed to continue, and it includes the economic impact—on economic growth—and social impact. Concentrating on these would go a long way to remedy the usual deficiencies of impact statements.

My noble friend’s amendment is a modest and proportionate attempt to get some rigour into the parliamentary scrutiny of environmental policy-making, and I hope it will find favour with my noble friend the Minister.