Environment Bill

Geraint Davies Excerpts

Consideration of Lords message
Monday 8th November 2021 Commons Chamber

[Rebecca Pow]

I hope that might answer the point the hon. Member was going to ask.

Draft guidance will need to be laid before both Houses for 21 days. During that time, either House will be able to review the guidance and make recommendations or resolutions to which the Government must respond. Select Committees, such as the Environment, Food and Rural Affairs Committee and the Environmental Audit Committee, may also wish to take the opportunity to scrutinise the guidance, and Ministers would be obliged to respond to them in the usual manner.

I turn now to Lords amendment 33B on environmental review, tabled by the noble Lord Anderson of Ipswich, and the Government amendments (a) and (b) in lieu that I am tabling today. On environmental review, the key area of debate has been the remedies available in the event a breach of environmental law if that is confirmed by the court. At the heart of the issue has always been the fact that through environmental review the OEP will have the ability to bring cases to court outside standard judicial review time limits, potentially long after the decisions in question have been taken. For that reason, the Government have maintained that bespoke provision is necessary to ensure certainty and fairness for third parties who have acted in line with decisions made by public bodies, and to protect good administration.

The OEP may pursue cases for enforcement action only if it considers that the conduct in question would constitute a “serious” failure to comply with environmental law. Clause 22(7) states that the OEP must have regard, among other things,

“to the particular importance of prioritising cases that it considers have or may have national implications.”

The OEP will have discretion to interpret those criteria, setting out its approach in its enforcement policy, but it follows, in the Government’s view, that cases which have only a local concern, for example most individual planning and environmental permitting decisions, are unlikely to have sufficiently broad or widespread impact to be prioritised. The OEP could pursue such cases if it considers they are indicative of a broader or more systemic issue or failure, or if especially serious harm has or may result from the potential failure. The OEP, for example, could consider it in relation to the destruction of a nationally important population of a rare and protected species, but it should not be the norm.

However, we have listened to and carefully considered the views and concerns raised in this House and in the other place, and agree it is important that the protections are balanced with the need to prevent or mitigate serious environmental harm. As such, I am pleased to be able to propose an amendment in lieu, which strikes that important balance. In introducing it to the House, I must repeat my earlier acknowledgement that ministerial statements in Hansard could be drawn on by the courts as a legitimate aid to statutory interpretation in future. The amendment will ensure that a high bar is still set for the granting of remedies where third parties may be affected. This is set out in condition A of our amendment. But, critically, it will also provide that, even where condition A is not met, if the court is satisfied that it is necessary in order to prevent or mitigate serious damage to the natural environment or human health, and there is an exceptional public interest reason to do so, the court will be able to grant a remedy. This is set out in condition B. It gives the court discretion to undertake a real and meaningful, albeit weighted, balancing exercise. It means that there would no longer be a blanket prohibition on the granting of remedies where third parties are likely to suffer substantial hardship or prejudice.

In the rare cases where third parties may be affected, however, I would like to illustrate how this provision could operate with an example. Potentially, on an environmental review, the court could rule that an environmental permit had been granted to a factory operator with such inadequate conditions that it was unlawful. If the court concluded that condition A was not met, because substantial hardship to the factory operator would be likely to result from quashing the permit, it would turn to condition B. If, in the absence of a quashing order, it is likely that the factory would continue to release harmful air pollutants with serious impacts for the health of the local population, the court may conclude that it is necessary to grant a remedy in order to prevent or mitigate serious damage to the natural environment or human health. At this point, the court would need to weigh the public interest in preventing serious harm against the public interest in preventing substantial hardship occurring to the third party. In order to grant a remedy, the court would need to be satisfied that the public interest in preventing this serious harm substantially outweighed the interest in preventing hardship, thereby constituting an “exceptional public interest reason” to grant the remedy.

In such cases, where severe damage to the environment or people’s health could occur or continue if no remedy was granted, the court may choose to grant a remedy. Given the types of serious cases that the OEP is likely to bring, we consider that this test strikes the appropriate balance. I have every faith that it will do so and that the amendment will therefore be a valuable addition to the OEP’s enforcement framework as a whole. I hope that the amendment provides reassurance that the Government are thoroughly committed to protecting against environmental harms through the OEP’s enforcement functions, and that the House will support it today.

I turn to what I believe most people are waiting for: the issue of storm overflows. I hope that colleagues will bear with me while I set out our position, because I believe that this is extremely important. So many people have spoken to and contacted me constantly about this whole process and I will take questions at the end, if that is okay, because we are so tight for time.

I have been clear that the frequency with which sewage is discharged from storm overflows into our waters is absolutely unacceptable. It is a credit to my right hon. Friend the Member for Ludlow (Philip Dunne) and the campaigning of many others that the phrase “storm overflow” is now used 47 times on the face of the Bill. However, I recognise that many hon. Members wanted to see more, and I am pleased to have tabled a further amendment that says that water companies “must” secure a progressive reduction in the adverse impact of discharges from their storm overflows. In this legal drafting, the word “must” means that we are placing a direct legal duty on water companies to do this. That is really crucial. Water companies will have a simple choice: reduce sewage discharges or face the consequences—that is, strong enforcement action.

Turning back to the specific amendment from the Duke of Wellington, we have redrafted it to ensure that it has proper legal effect and there is more effective implementation, and we have gone further in places. I have had much discussion with the Duke of Wellington —I greatly respect and value that—and I would like to clarify a number of points. This amendment places a clear legal duty on water companies to deliver improvements —something that the Duke particularly pressed for. Indeed, ours is a stronger duty than in his wording. Our amendment will ensure that they have to take the necessary steps relative to the size of the problem. We have taken the “progressive” reduction wording from the Lords amendment. “Progressive” means that water companies must continue to take action even after the next price review period and even after they have achieved a significant reduction and tackled high-priority sites, as required in the draft policy statement to the regulator, Ofwat.

[Geraint Davies (Swansea West) (Lab/Co-op)]

Will the Minister give way?

[Rebecca Pow]

I will not take any interventions, because I just want to get this on the record, if the hon. Gentleman does not mind—I know that he is passionate about this whole environmental issue.

I am aware of some wildly inaccurate claims that have been circulating online for the past so many days that we are somehow legalising the dumping of raw sewage—we are not. Our amendment goes further than the Lords amendment by legally specifying that “adverse impacts” includes impacts both on the environment and on public health—for bathers, canoeists and so forth. Enforcement was a key part of the Duke’s amendment and our version goes further, because it will dock in with the existing enforcement regime in the Water Industry Act 1991. Ofwat can issue enforcement notices that can direct specific actions or fine companies up to 10% of their annual turnover, running to millions of pounds. If we do not see sufficient progress from water companies, Ofwat and the Government will be able to take enforcement action, and we will not hesitate to do so. Not only that—under other provisions in the Bill, the OEP will be able to take enforcement action against the Environment Agency or Ofwat or, indeed, the Government, should it feel that any of us are not adequately discharging our duties.

There has been much debate about the costs required to eliminate sewage discharges from storm overflows. Last week, the Storm Overflows Taskforce, which I set up, published research on this issue. It estimated that the complete elimination of sewage discharges through storm overflows in England, which many are calling for more broadly, is likely to cost between approximately £350 billion and £600 billion. That could mean up to £1,000 on bills every year. There are important discussions to be had about the best way to address this important issue while protecting bill payers, and this very morning, I called the CEOs of all the water companies in to a meeting. They assured me that they recognise the need for urgent action. We must see better performance from them and I will be watching the progress closely, as indeed, will the Secretary of State for Environment, Food and Rural Affairs.

I would much very like to thank my right hon. Friend the Member for Ludlow and the Duke of Wellington for their tireless efforts on this issue. Today, I am asking the House to vote in support of the Government: you will be voting directly—

--- Later in debate ---

[Luke Pollard]

Funnily enough, that is a point that I was going to refer to the Minister, because there is no timetable—a really glaring hole in what has been published today. A progressive reduction in discharges sounds all well and good, but I would like to progressively reduce the amount of cake I eat, and yet there is a big difference between doing that over a day and doing it over a year. I am a big fan of cake, as some in the House may know.

Let us get down to the detail. There are three things that I would like the Minister to confirm; otherwise, I fear that we will not be able to support her amendment. First, will she commit to reviewing the scale of fines so that water companies that continue to routinely discharge raw sewage face higher penalties?

Secondly, Labour wants the guidance in the strategic policy statement for Ofwat to be super-strengthened so that there is a clear direction to water companies to target the most polluting discharges now, with a plan to address the rest urgently against a clear timeframe. Progress by DEFRA, Ofwat, the EA and water companies should have proper parliamentary scrutiny annually via the Environment, Food and Rural Affairs Committee, or potentially the Environmental Audit Committee.

Thirdly, will the Minister set out in detail what she means by “progressive reduction”? That means answering two very simple questions: by when, and how much? If that cannot be set out, it is just spin. I fear that water companies could say, “We are meeting our progressive reduction with these two tiny projects over here,” and not set out a clear commitment. By when and how much will discharges be progressively reduced?

[Geraint Davies]

Will my hon. Friend give way?

[Luke Pollard]

I will keep going, just because of the pressure on time.

It is not just the Opposition who have concerns. Water UK and water companies tell us that they have concerns about the Government’s amendment and favour the Duke of Wellington’s. Green groups, environmental groups, angling groups, fishing groups and swimming groups also say that they favour the Duke of Wellington’s amendment over the compromise amendment, so there is widespread concern.

There is a lesson for Tory Back Benchers from the sewage vote and from what happened last week with parliamentary standards and corruption. It is now a brave Tory Back Bencher who will listen to their Whips on unpopular votes, because after dragging their MPs into the gutter, the Government are likely to U-turn a week later and make them look foolish. However, let us be clear about the agency that each Member of Parliament has. The last vote on sewage was a disaster for the reputation of many Members of this House. They knew what they were doing: they were putting the party Whip ahead of the environment, and voters will judge them on it. Doing it once was a mistake; doing it twice is a pattern that voters will recognise and will vote on accordingly next time round.

It is vital that we rebuild trust on the issue. The sewage scandal has been a shameful episode for the Government. There is real cross-party desire to make our approach stronger. I would be grateful if the Minister set out whether she will support the three elements that I have outlined so that we can support her amendment; if we do not get that reassurance, I am afraid that we cannot.

Labour wants the OEP, instead of being a lapdog, to be a strong, robustly independent watchdog. The Minister has tried to put reassurances on the record that the Government will not seek to frustrate the OEP if it needs to hold them to account and take enforcement action against Ministers. In the past week, however, we have seen exactly what happens when the rules no longer suit the Government, so we want them in the Bill—not just a statement from the Dispatch Box that may or may not be used in future court cases, but clear rules in the Bill.

What the Minister set out about having regard to the guidance is welcome, but the experience with budget-setting powers and with the Electoral Commission, where Ministers have threatened a public body on receiving bad news from it in another investigation, is a bad precedent that needs to be removed.

We want the Bill to be better. There are good things in it, but on the whole it is just a bit “meh”: it does not reach the scale of the action we need for the scale of the crisis we face. I would therefore be grateful if the Minister set out whether she will support the three things that I mentioned. If not, I am afraid that Labour will not be able to support her compromise amendment on sewage and will vote against it so that we can secure a vote on the Duke of Wellington’s amendment, which is far superior.

--- Later in debate ---

[Neil Parish (Tiverton and Honiton) (Con)]

It is a pleasure to speak about these Lords amendments.

I welcome the Government’s progress on the Office for Environmental Protection. I think that its independence is better protected than it was before, but that is something of which we must be very conscious. I believe that it will be very effective under Dame Glenys Stacey, and I think that the Secretary of State will work with her, as will Ministers, to ensure that it is indeed independent. It must have enough resources to be able to continue its work. I hope that it will prevent a great many cases from going to court. We will ultimately need a judicial system to make it work, but I hope that the new system and the new body will bring about many conclusions on environmental problems, and a good deal of advice so that cases do not end up in the courts for years.

I will be very quick, Madam Deputy Speaker, but I want to welcome the work that my right hon. Friend the Member for Ludlow (Philip Dunne) has put into the outflows amendment, and also the work done by the Duke of Wellington. Together, they have negotiated extremely well—dare I say it—with the Government, and what the Government have now come up with is absolutely right.

[Geraint Davies]

As the hon. Gentleman knows, if we do not accept the Wellington amendment, we will all have to wear Wellington boots to avoid the stools while we are paddling. But does he agree that we also need on-roof water capture with water butts, upstream water capture, and downstream and water processing plant capture so that we can take the pressure off the sewerage system when there is flash flooding, and sort out this problem without immediate massive investment in the sewers?