Environment Bill

Jim Shannon Excerpts

Consideration of Lords message
Monday 8th November 2021 Commons Chamber

[Rebecca Pow]

I am delighted to be here in the House for what I really hope will be the final time discussing the Bill, even though I have quite relished my involvement with it. It has been quite a journey, but here we are with a Bill that does so much to set us on a sustainable trajectory for future challenges: tackling air, water, and waste pollution; improving our environment on a scale never before done; and stemming the tide of biodiversity loss and restoring nature. The sum of all these parts is groundbreaking.

I turn first to Lords amendments 31C and 75C, tabled by the noble Lord Krebs and Baroness Ritchie of Downpatrick in the other place, and amendments 31A, 31B, 75A and 75B, which the Government are insisting on today. I wish to put a number of points on the record in the knowledge that ministerial statements in Hansard could be drawn on by the courts as a legitimate aid to statutory interpretation in the future.

The office for environmental protection is and must be an independent body capable of holding public authorities to account for their environmental responsibilities, including through the use of its enforcement functions. That is why the Government have given the OEP a remit and powers of unprecedented breadth in the Bill. For the OEP to work effectively, it must act strategically and take action only when there is an environmental and public interest in doing so. On that point, everyone is agreed.

As the Secretary of State is ultimately accountable for the OEP’s performance and use of public funds, the Government consider that the accountability power in clause 24 is necessary to ensure that the body continues to use public resources effectively to achieve the greatest public good. However, I must be clear that the content of guidance is limited to the areas of the OEP’s enforcement policy listed in clause 22(6). It cannot be used to direct the OEP as to the content of any report it might produce or any advice to the Government. Indeed, it cannot be used as a power of direction at all. It would also be inappropriate for the Secretary of State to issue guidance on specific matters relating to the enforcement of environmental law against the Secretary of State for Environment, Food and Rural Affairs, given that there would be a conflict of interest. I do not want to be disingenuous: the OEP would be expected to have regard to any guidance issued, but it will retain the ability and discretion to make its own decisions, and will not be bound to act in accordance with the guidance where it has clear reasons not to do so.

[Jim Shannon (Strangford) (DUP)]

Will the Minister give way on that point?

[Rebecca Pow]

I am going to rattle on. We have one hour only, but I will respond in my closing speech as much as I can to any issues that arise.

Many in this place and the other place have previously raised concerns that the Secretary of State might be able to use guidance to preclude the OEP from investigating a broad category of individual cases or subject areas, such as a nuclear power station. I must say, unequivocally, that it is our view that the power could not lawfully be used in that way. Any guidance issued must be consistent with the duty in paragraph 17 of schedule 1 for the Secretary of State to have regard to the need to protect the independence of the OEP. Any guidance that diverted OEP scrutiny away from entire policy areas, outside of existing statutory steers on prioritisation, would not be in keeping with that duty. This is not a power that could be used simply to divert the OEP away from investigating issues that could be in some way inconvenient to the Government. The provision for guidance on how the OEP intends to exercise its functions means that the guidance will, by its nature, be on the OEP’s approach to those issues, rather than defining specific areas to prioritise or deprioritise.

The OEP will operate with a very high degree of independence, especially when it comes to making individual enforcement decisions. In exercising its discretion in individual cases, the OEP would need to have regard to all relevant factors, but must ultimately take all its decisions objectively, impartially and independently of Government. Furthermore, the Environment Bill already provides that the OEP should focus on cases that have national implications. Guidance could not be issued that went against the existing provisions, but it could instead add further detail. However, it will remain up to the OEP, within the framework provided by the Bill and any guidance, to determine whether cases that have a discrete local impact also have national implications, or for some other reason have sufficiently broad or widespread impact to be considered serious, or to be prioritised for the purposes of its enforcement functions.

It is important to note that the Secretary of State is also able to offer guidance on how the OEP should respect the integrity of other bodies and existing statutory regimes. With such a broad remit, the OEP will be able to scrutinise all public authorities, including many expert scientific bodies. This ability will be important for it to be able to take a broad view and identify systemic issues.

I am sure the OEP will be extremely effective, but it will be a relatively small body with a broad remit. The decisions of organisations such as the Centre for Environment, Fisheries and Aquaculture Science, which employs hundreds of world-leading marine scientists, will be based on deep expertise and often highly technical scientific data. The OEP will need to be mindful of that in its own decision making when scrutinising such bodies. It is important to get the balance right to maintain confidence and integrity within existing regimes, and guidance could help to address that. We believe the power is important to ensure accountability, so that the OEP can contribute to delivering environmental improvements in the way I think we all agree it should: by acting strategically not just in the short term, but long into the future.

I can also confirm that this Government will not issue guidance to the OEP before the initial setting up of the OEP or before it has had the chance to develop its own enforcement policy. I recognise the points that hon. Members have raised, which is why the Government have previously reintroduced a provision for Parliament and the Northern Ireland Assembly to scrutinise any draft guidance before it is issued.

[Jim Shannon]

rose—

[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.

--- Later in debate ---

[Kelly Tolhurst (Rochester and Strood) (Con)]

I would very much like to thank the Minister for her clarity today. I represent a constituency that has a great river running through it. It is a river that I have sailed on all my life and also swum in all my life, albeit sometimes unintentionally. This whole debate around the sewage amendment is very personal to me because I am the daughter of a boatbuilder who often used to work on boats on his creek right next to raw sewage and water scum. Nobody on the Government Benches could deny that that kind of environment is totally disgusting.

Also, this year we saw an unprecedented period in which our beautiful Kent beaches were shut because of an absolute disaster involving the dispersal of sewage from the overflows. There is no doubt that water companies pumping sewage into our waterways in 2021 is disgusting. Two weeks ago, I supported the Duke of Wellington’s amendment because I wanted the Government to go as far as they could practically go in stopping this practice. I am very thankful for the work of the Minister and of my right hon. Friend the Member for Ludlow (Philip Dunne) and for the discussions that have gone on in these two weeks to ensure that we have been able to bring forward this amendment today. I will support the Government tonight, because I totally believe that this new duty, combined with other measures in the Bill, will be a major step towards ending the use of storm overflows.

I was disappointed by some of the comments made by the hon. Member for Plymouth, Sutton and Devonport (Luke Pollard), for whom I have great respect. We need to recognise that this Government and these Ministers are the first to tackle the issue of sewage and storm overflows. No Government have done that previously, and I am proud that the Minister, who is so passionate about this issue, has worked incredibly hard to accommodate our worries and fears. The Environment Bill is a major piece of work for the protection and improvement of our environment. Make no mistake, these measures will cost the water companies and the bill payers, but I believe that they will bring the water companies into line so that we can stop this disgusting practice. I will be very happy to support the Minister and her team tonight.

[Jim Shannon]

It is a pleasure to speak in the debate, but I will not take too long. I want to ask the Minister a quick question. I am pleased to see what is coming forward in relation to single-use items and the conservation covenants, and I am pleased that those measures have all been passed. However, I still have a concern about the Office for Environmental Protection’s enforcement policy. Lords amendment 31 states:

“The OEP has complete discretion in the carrying out of its functions, including in—

(a) preparing its enforcement policy,

(b) exercising its enforcement functions, and

(c) preparing and publishing its budget.”

That has merit in my eyes, and I would be interested to hear the Government’s rationale as to why they believe it is unnecessary, as I believe that similar amendments were made in relation to Northern Ireland.

I am also gratified to learn that there is now a Government amendment in place for a duty to be enshrined in law to ensure that water companies secure a progressive reduction in the adverse impacts of discharges from storm overflows. That has been lacking for many years, and I have seen the devastating effects of discharge from storm overflows on homes that merit at least this form of protection. For too many years, the water companies have been doing the bare minimum. I seek the Minister’s confirmation that more will be done to ensure that the rivers and waterways around this great United Kingdom are protected, that more will be done than just the bare minimum, and that this will be the beginning of progress. We must all take our obligation to future generations more seriously. I often say, as others do, that we leave our environment for the generations that come after us, and for the sake of my grandchildren—and my great-grandchildren, when that time comes—we must ensure that the water companies step up to their agenda.

[Bob Seely (Isle of Wight) (Con)]

I will be as brief as possible, Madam Deputy Speaker. I thank the Ministers for listening and for moving on this issue, and above all I thank my right hon. Friend the Member for Ludlow (Philip Dunne), who was sitting next to me, for his leadership on this issue. I do not think that this could have happened without him. To be blunt, if this amendment is good enough for him, it is good enough for me. He would not support it if it were not strong.

On the Isle of Wight we have some wonderfully clean beaches, but any sewage discharge is unacceptable. In a place that is environmentally sensitive—we are a UNESCO biosphere—and that has so many amenity sites because of so many visitors swimming, having human poo on our beaches is not acceptable. The same applies in the Solent, for sailors, whether they are in the Solent accidentally or deliberately. We need to clean this up.

I also note that I know the Government are somewhat victims of their own success. It is great being lectured by the Opposition, but this groundbreaking Bill is being brought in by the Government side, and we should all be supporting it.

I have two questions for the Minister, who was kind enough to say that she would take them. First, the Government have power to push the water firms to go further, faster. Will she be willing, and will the Secretary of State next to her be willing, to use that power to ensure that the water firms understand the urgency of this situation for our waterways and our beaches?

Secondly, and if I understand it rightly, can the Minister confirm that ecologically sensitive sites and amenity sites, as which the Isle of Wight’s beaches both qualify, will be given priority? I am writing to the water firms about that this evening, but anything the Minister could do to clear that up and to ensure that those amenity and ecologically sensitive sites are prioritised would be very welcome.