Environment Bill

Duke of Wellington Excerpts

Consideration of Commons amendments
Tuesday 9th November 2021 Lords Chamber

[Baroness Jones of Whitchurch (Lab)]

My Lords, I will speak specifically on Motions A, A1, B and D. My noble friend Lady Quin will then return to Motion C later in the debate. I thank the noble Lords, Lord Krebs and Lord Anderson, for their perseverance and commitment to achieving proper OEP independence and enforcement powers. As we have said repeatedly, these measures are necessary to ensure that the environmental standards set out in this Bill, and indeed elsewhere, are protected for the longer term. I am also grateful to the Minister and the Bill team for listening and engaging on the issues that we have raised.

However, what we have before us today is not ideal, and we believe that the Government could have gone further to amend the Bill to give the assurances for which noble Lords across this House have repeatedly pressed. Throughout the process, we have supported the noble Lord, Lord Krebs, in his determination to protect the independence of the OEP. This has been a fundamental issue and we continue to support Motion Al, which he has tabled today. We believe, as his amendment sets out, that the OEP should have complete discretion to carry out its functions free from the interference of government.

In this context, there have been a number of areas of detail which have been helpfully clarified by the Government in the Commons and, again, in this Chamber by the Minister today. For example, despite the Government’s insistence on the right to issue guidance to the OEP, we welcome the recognition that this should be limited to the areas of OEP enforcement policy listed in Clause 22. Quite rightly, it has been made clear that the Secretary of State cannot issue guidance on enforcement issues against the Defra Secretary of State, as this would be a clear conflict of interest. It has also been helpfully clarified that it would be within the scope of the OEP’s remit to investigate broad categories of individual cases that might have a common theme. This includes cases that have a discrete local impact but national implications.

We also reiterate our support for the proposal that Parliament should scrutinise the draft guidance before it is issued. All this goes some way to providing reassurance on an issue that we nevertheless believe continues to represent a flaw in the overall construct of the legislation. Can the Minister also assure us that before the Government publish any draft guidance, they will consult the OEP? Can he also assure us that the framework which will be agreed with the OEP will also set out its commitment to a five-year indicative budget? These are issues which the Minister will know are outstanding from earlier debate.

On the issue of enforcement, we welcome the tabling of the Government’s amendments to Clause 37(8), which address the concerns that the threshold for achieving a successful judicial review was insurmountable and anyway gave precedence to the interests of third-party polluters rather than those of the environment and the community. The amendment recognises that, on occasions, granting a remedy to address behaviour or damage will be necessary even if it may cause substantial hardship to the rights of a third party.

We have argued from the beginning that the courts should have the discretion to weigh all these factors equally in the balance. The Government’s amendments do not achieve that objective, but nevertheless we support the noble Lord, Lord Anderson, in the view that this compromise wording is a step forward and the best that we will get at this stage of the process. No doubt the exact meaning of “the exceptional public interest” test will be played out in the courts in years to come, and we very much hope that the widest possible interpretation of it will become the norm.

The Minister will not be surprised to hear that we still have reservations about the final wording in the Bill on these issues, but nevertheless, we accept that progress has been made, and hope that he can reassure us on the remaining outstanding questions about the OEP’s independence.

[The Duke of Wellington (CB)]

My Lords, I speak to Motion C, introduced by the Minister.

Members of both Houses of Parliament and the public have become increasingly aware during the passage of this Bill that our rivers, of which we are so proud, are being despoiled every day by sewage discharges, both legal and illegal. The BBC and national newspapers have carried so many disturbing stories and even Ministers have learned to what extent our aquatic environment is being continuously mistreated.

I thank the Government for tabling in the other place the amendment in lieu, which the House of Commons passed last night by a large majority. I also thank Rebecca Pow, the Environment Minister, for discussing the amendment with me last Thursday and I thank several Ministers and the Secretary of State for various meetings which we have had in recent weeks.

Since this House passed the cross-party amendment on 26 October, which placed

“a duty on sewerage undertakers to take all reasonable steps to ensure untreated sewage is not discharged”,

there has been considerable public support for this wording. Even Water UK, the industry body which represents the water companies, put out a statement the following day that MPs should back the Lords amendment to strengthen the Environment Bill. I was surprised by this as I had assumed that the water companies would oppose my amendment, but they want the Government to go further. Specifically, they want the Government to instruct regulators—I assume that means Ofwat—to authorise investment in sewers. From the Minister’s words when moving the Commons amendment, it appears that the Government will be giving suitable directions to Ofwat. The government amendment requires by law that the water companies secure a progressive reduction in the adverse impacts of discharges. I particularly welcome the reference to “public health” in the new amendment.