Environment Bill

Baroness Parminter Excerpts

Committee stage
Wednesday 30th June 2021 Lords Chamber

[The Minister of State, Department for the Environment, Food and Rural Affairs and Foreign, Commonwealth and Development Office (Lord Goldsmith of Richmond Park) (Con)]

I thank noble Lords for their contributions. Before I start, I would like to wish my noble friend a very happy birthday and thank her for spending it with me on these Benches. That is very kind.

I thank the noble Baroness, Lady Parminter, for tabling Amendment 103 and for her compelling speech on Monday. I appreciate the amendment’s intention. The concern is that it could be duplicative, and I would like to direct her to Clause 19, which already places requirements on the OEP to give advice, on request, to Ministers on any matter relating to the natural environment and, on request or on its own initiative, on any proposed changes to environmental law. It builds on Clause 28(2), which gives the OEP the power to report on

“any matter concerned with the implementation of environmental law.”

It is in these areas that the OEP will have the greatest expertise, and that its advisory and reporting roles should be focused. To be clear, this will include planning legislation where it relates to the environment, including environmental impact assessments, strategic environmental assessments and all the measures in the Bill relating to planning. Other bodies, such as Natural England and others, have functions to advise government on matters concerning the natural environment. Amendment 34 would risk duplicating this and directing the OEP away from its core functions.

Turning to Amendment 114, also tabled by the noble Baroness, Lady Parminter, Clause 45 is vital in defining and establishing the OEP’s remit, and each of these exemptions serves important purposes. Clause 45(2)(a) excludes the

“disclosure of or access to information”

from the OEP’s remit in order to avoid overlap with the remit of the Information Commissioner’s Office. The exclusion of legislative provisions concerning the Armed Forces and national security is important to the protection of the country. Such legislation would concern highly sensitive matters and it is therefore appropriate to restrict the OEP’s oversight and access to information in such areas.

However, public authorities such as the MoD would not be exempt from scrutiny by the OEP in respect of their implementation of environmental law, including in respect of SSSIs and the MoD’s statutory duties in the Countryside and Rights of Way Act. It is clear to us—this is a point made by a number of noble Lords—that the MoD, as one of the country’s biggest landowners, has a direct impact on the natural environment. We will need to be absolutely confident that the exemptions do not in any way loosen the MoD’s responsibilities for managing those natural assets.

Turning to Clause 45(2)(c), legislation regarding

“taxation, spending or the allocation of resources”

is developed by HMT and needs to be developed with the flexibility to meet the nation’s revenue requirements. However, the spending of government resources may well be a relevant consideration in the OEP’s review of the implementation of environmental law, and it may refer to this in its scrutiny and advice reports to government. Additionally, legislation relating to regulatory schemes such as the plastic bag levy is not part of the exclusion and is within the OEP’s remit.

Turning to Amendment 109, following EU exit, Defra’s secondary legislation programme ensured that reporting requirements in EU legislation were generally converted into a requirement to publish environmental information online, meaning that information about the environment will be publicly available.

Additionally, when we left the EU our domestic legislation was updated to meet domestic rather than EU objectives. For example, where EU law required the UK to report to the European Commission on pesticides residue monitoring, our domestic legislation now provides for an equivalent national report to be published online and, therefore, to be made public.

I should add that if the Government wished to seek the OEP’s advice on matters relating to environmental law, including on reporting arrangements, it could do so under provisions made in Clause 29.

I hope that this goes some way to reassuring noble Lords that the amendment is therefore not needed. It could serve to blur the lines or even distract the OEP from the core functions it will be required to undertake. I ask therefore that the amendment be withdrawn.

[Baroness Parminter (LD) [V]]

My Lords, I thank the Minister for his remarks and all those who have spoken in this short debate for their universal support for my Amendments 103 and 114.

I listened carefully to the Minister but I have to say that I still do not think he has quite answered the question raised by Amendment 103. He said that the OEP can give advice on matters such as planning—if it is asked. The point behind my amendment is that, as it stands, the OEP cannot give advice on those matters if it is not asked.

When we were debating this amendment late on Monday, I did not make the point—I will make it now—that Environmental Standards Scotland can make recommendations to any other body on matters relevant to its function. It can go right across the piece but, importantly, the OEP cannot, so its powers are narrower than those currently given to the parallel Scottish body. I agree with the noble Lord, Lord Rooker, that this is an indication of Defra’s controlling nature, and I am afraid that I am not satisfied by what the Minister has said. Nor is he prepared to accept the broad thrust of my argument as set out in Amendment 114: the massive carve-out in terms of disclosure of information on the MoD’s spending.

The Minister has not responded satisfactorily to the concerns raised by Members here today or to those raised in the linked amendment, 78, which we also discussed on Monday and to which the noble Baroness, Lady Bennett of Manor Castle, referred. I beg leave to withdraw the amendment, but we will be returning to this issue on Report.

Amendment 103 withdrawn.

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[Lord Duncan of Springbank (Con)]

My Lords, I begin by drawing attention to my interests in the register, notably the chairmanship of the National Forest.

I was pleased to put my name to Amendments 105 to 108, because they are necessary and they make the Bill better. We have heard echoed by a number of noble Lords how that can be achieved and I hope that the Government hear that. In many ways, this clause is like a Monet painting. It looks fine from a distance, but the closer you get the more the detail seems to disappear. What we need now is clarity and for that detail to be recognisable. Non-compliance must affect validity. That is a simple statement of fact. The beneficiary of an environmental deterrent or damage cannot escape sanction because he is materially affected by the sanction. That cannot be a useful way of moving forward. The remedies available must be a deterrent. If they are not, the system will be gamed. Individuals will find ways through, between and under, and they will be able to make a mockery of what should be a very important institution.

The OEP is a successor to a body that was able by its threats to bring about fundamental change in how environmental laws were enforced—and it made the environment better, safer and healthier by doing that. The successor body must be able to do the same and have available to it each of the elements that can allow it to achieve that outcome. That is why I was very pleased to put my name to these amendments.

[Baroness Parminter (LD) [V]]

My Lords, we on these Benches thank the noble Baronesses, Lady Jones of Moulsecoomb and Lady McIntosh of Pickering, and the noble Lord, Lord Anderson of Ipswich, for these amendments, which expose the fundamental flaws in the proposed enforcement powers of the environmental watchdog. We support all the amendments, particularly Amendment 107. As others have said, lawyers in this Chamber have eloquently made the case, so I will merely reflect on two points.

First, the Government have said that they want the OEP to be world-beating in its role. Yet a cursory review of its remit, as opposed to that of the body in Scotland, Environmental Standards Scotland, suggests that that is absolutely not the case and that the powers of the OEP are far more prescriptive than those of Environmental Standards Scotland, which has the power to take the steps that it considers appropriate—I repeat, the steps that “it” considers appropriate—to secure public authorities’ compliance with environmental law and how it is implemented or applied. So, if the Government want the OEP to be a world-beating watchdog, they need to look at the options rather more carefully in order to ensure that that is delivered.

Secondly, on Amendment 107, which seeks to remove the restriction on the ability of the court to grant remedies, such as squashing orders, where that could cause severe hardship, we agree very much with the noble and learned Lord, Lords Thomas of Cwmgiedd, who said that we should trust the judges. As it stands, the Bill fetters the discretion of the judiciary and radically alters the balance of power in favour of the Executive.

The noble Lord, Lord Krebs, asked: who bears the brunt of this weight in the change in the balance of power? He rightly reflected that it is nature—but, equally, it is the people of our country. It has been a fundamental cornerstone of British democracy that people have a right to environmental justice and to hold the Government to account. It is also a right guaranteed to the British public, given that we are signatories to the Aarhus convention. Therefore, as it stands, unless these amendments are accepted, we the British public will have weaker rights to environmental justice than we had previously under the European Union. We therefore urge the Government to accept these amendments and to ensure that the OEP has the robust powers that it needs in order to be—and, as the noble Earl, Lord Caithness, said, to be seen to be—an effective and robust environmental watchdog.

[Baroness Jones of Whitchurch (Lab)]

My Lords, first, I am grateful to the noble Lady, Baroness Jones of Moulsecoomb, for tabling Amendment 104. It enables us to have a discussion about what penalties are appropriate to ensure compliance with environmental law and to ensure that breaches are dealt with appropriately.

We agree that, as the Bill is currently worded, issuing decision notices has nothing like the impact that we previously enjoyed in the EU, whereby Governments could incur substantial fines. As the Bill stands, decision notices are not binding and it is not clear that these would be an effective way in which to remedy failures to comply with environmental law. We believe that the OEP should have much broader powers to make judgments, case by case, about what an appropriate remedy should be, including making amends and repairs and, in some cases, paying a financial penalty. I rather liked the rather creative proposal of the noble Baroness, Lady Jones, that the revenue from those fines could then go to the NHS.

A more substantial point about financial penalties is made in the amendment of the noble Baroness, Lady McIntosh. She gave an excellent insight into why these are necessary. We also agree with her that these decisions need to be enforceable and to send a clear message that would dissuade other public bodies from similarly breaching the law. The remedy should also require the public body to make a public declaration of the steps that it will take to put the matter right.

I know that the Government have consistently argued that financial penalties are not appropriate within the UK, as that would simply transfer money from one government pot of money to another. But we have to face the fact that it was a considerable deterrent in EU law and that nothing yet proposed in this Bill has anything like the same deterrent effect. As the noble Lord, Lord Anderson, said, penalty fines concentrate minds. Meanwhile, he and other noble Lords have all, in a powerfully co-ordinated way, taken apart the judicial processes in the Bill and exposed their weaknesses. They have made the case much better than I ever could. I am grateful to the Bingham Centre for the Rule of Law and the legal analysis offered from ClientEarth for setting out in some detail the failings in the judicial clauses of the Bill.

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[Baroness Altmann (Con) [V]]

My Lords, I congratulate my noble friend the Minister and the Government on the work they have already done in attempting to ensure that we reduce the amount of plastic, particularly single-use plastics, and on the measures already in the Bill, such as Clause 54 and some of the schedules. The Government and my noble friend are absolutely determined to make sure that the Bill significantly addresses the dangers and the damage done to the environment by the use of plastics, which so many of us have grown up without thinking about the consequences of using. I hope that my noble friend can engage with some of the intentions and specifics of some of the amendments in this group.

I particularly support Amendment 140, which was so clearly explained by my noble friend Lord Blencathra. Banning polystyrene use in food packaging, for example, could make a significant difference in the short term. I also agree with his aim of eventually banning it in construction.

I also add my support for the aims of the amendments in the name of the noble Baroness, Lady Bakewell of Hardington Mandeville, which concern plastics which are not polluting but have been developed to be fully biodegradable. I agree with the noble Baroness, Lady Bennett, that some plastics are not planet-friendly, while others completely biodegrade naturally. If we are to impose a plastic tax, which I would support fully, there may be a need, through independent standards, to differentiate those that biodegrade properly from those which clearly will continue to damage the environment.

I look forward to hearing the thoughts of my noble friend about some of the amendments in this group, which are well worth considering adding to this excellent Bill.

[Baroness Parminter (LD) [V]]

My Lords, this is a powerful suite of amendments to tackle waste and our throw-away culture. As the noble Baroness, Lady Jones of Whitchurch, said, the Government have had some success in tackling the low-hanging fruit—issues such as cotton buds containing plastics—but, somehow, sachets did not quite get included in the early initiatives. Clearly, with Covid, some uses of single-use sachets are helpful, but, in other instances, such as beauty products, it is really time for them to be banned.

The noble Baroness, Lady Jones of Whitchurch, made a very compelling case for more duties on companies to ensure that there is mandatory reporting of plastic packaging. In the past, this Government have trusted too much in companies and gone down the route of voluntary schemes. Now is the time to encourage more mandatory reporting of companies in this critical area.

Of course, we are not just talking about plastics here. I was pleased to co-sign Amendment 139, in the name of the noble Viscount, Lord Colville, which will encourage charges for all single-use items. He very powerfully made the case that a number of these alternatives are equally environmentally reckless and certainly will not cut our global greenhouse gas emissions, so we have to not only tackle single-use plastics but look at the alternatives that might be proposed.

My noble friend Lady Bakewell of Hardington Mandeville has done an absolutely sterling job tonight of raising a number of key issues and, in this group, lucidly reflecting on the issues around the importance of compostables, which can make a real contribution to moving towards more sustainable packaging alternatives. As the noble Baroness, Lady Jones of Moulsecoomb, rightly said, the public need more education about compostables, and we need more local authorities to be collecting compostable films, because not all of them can be composted in back gardens—and indeed many households do not have back gardens, so they could not use compost bins even if they wanted to.

On behalf of the Lib Dems, I say that we absolutely support the Government’s plastic tax initiative, which is very welcome, although it clearly needs to avoid perverse penalties that would curtail the options for compostable films and incentivise their development for the future.

It was interesting to hear what the noble Lord, Lord Blencathra, said about polystyrenes, which is clearly an area that needs a lot of attention. Like the noble Baroness, Lady Altmann, I think that this is a complex issue, and, in the long term, we need to look at how they can be used less in construction. However, now we absolutely need to support alternatives, because these exist for food packaging. The noble Baroness, Lady Bennett, clearly made the case that this has been happening in a number of places around the world already. We need to get on to this and address the issue of stopping polystyrene being used in food packaging.

Like other Members, I attest to the fact that there is support on all Benches for more support and action by the Government to tackle waste. As we move towards the end of the evening, I hope that the Minister might be able to respond positively at last to some of these amendments.

[Lord Goldsmith of Richmond Park (Con)]

Before I address the individual amendments in the group, I reiterate that the Government absolutely share the concerns associated with the proliferation of plastics. I assure Members across the House that measures in the Bill will vastly improve the tools that we have at our disposal to tackle plastics pollution and the damage that they cause.

I thank the noble Viscount, Lord Colville of Culross, for Amendment 139. Noble Lords have spoken extensively and unanimously about the need to combat plastics and the damage that they do to the environment. I know that litter picks on the beaches near Culross find a significant amount of single-use plastic, as they do on all beaches, sadly, even those around the Pitcairn Islands, which are the most remote on the planet.

The Bill provides a robust approach to help to move towards a more circular economy in all sectors. Items that are not captured by Clause 54 could be captured by other measures, such as EPR or resource efficiency. In response to the noble Viscount, Lord Colville of Culross, I say that I stand by my earlier comments about resource use more broadly and the need to reduce waste and our impact on the planet generally. I do not think that we disagree—we know that, in the open environment, plastics endanger wildlife in a particular way. As has been said, unlike other materials, they will persist for hundreds of years—we do not actually know how long, because none has fully decomposed— which is why we believe that they require particular, special forensic attention through these measures. Through the Bill, powers to place charges on single-use plastic items will be a powerful tool in helping us to reduce unnecessary single-use plastics.

The noble Viscount also mentioned cups. To reassure him: I recently learned that disposable cups filled with liquid drinks are classified as packaging and therefore obligated under the packaging producer responsibility regulations.