Environment Bill

Lord Krebs Excerpts

2nd reading
Monday 7th June 2021 Lords Chamber

[Lord Krebs (CB) [V]]

My Lords, this Bill is both welcomed and long overdue. It could give us the basis for reversing decades of careless mistreatment of our natural environment and the opportunity to enjoy cleaner air and rivers and restore degraded habitats and biodiversity.

As my noble friend Lord Cameron mentioned earlier, in 1973, when we joined the European Union, we were labelled the dirty man of Europe. We have made significant process since then, largely as a result of EU rules and enforcement, but there is still a long way to go. It is said that this Bill will help us go further, but I remain to be convinced. To explain why, I want to focus on biodiversity—or nature, as the noble Lord, Lord Blencathra, prefers to call it.

The UK is one of the most depleted countries in the world in terms of biodiversity. The Natural History Museum has calculated an index of biodiversity intactness. Using this measure of the health of our natural environment, we rank 189th in the world, and we are bottom of the G7 countries. In the past 10 years, 41% of our bird species have decreased and 15% of our wildlife is threatened with extinction. The dreadful state of our nature is at least in part a result of living in a densely populated country in which nearly three-quarters of our land is used for farming or the built environment. We have simply squeezed nature out of its home.

I am therefore very pleased to learn that the Government intend to introduce legally binding targets for restoring biodiversity through this Bill. However, the Government have set targets for halting nature’s decline before and failed to meet them. For instance, in 2010 the Government signed up to the so-called Aichi targets under the global convention on diversity. In 2019, the Joint Nature Conservation Committee found that we had made insufficient progress on 14 out of 19 targets. Furthermore, in 2020 the JNCC reported that only about half the sites of special scientific interest in this country are in favourable condition and that there has been no improvement in this score over the past 15 years. So, forgive me if I sound a bit sceptical, but I would like the Minister to explain why we should believe any new commitments to meet biodiversity targets, given the Government’s past record of failure.

At the same time, I hope the Minister can unpack a bit more of the detail. First, will the targets involve halting the decline of particular species, taxonomic groups or habitats, or all three? Secondly, do the Government know what actions they will have to take to restore nature? Many of the initiatives supported under Pillar 2 of the common agricultural policy failed to enhance nature because they were not based on good science—a point just made by the noble Lord, Lord Browne of Ladyton. Will the Government be able to avoid making the same mistakes? Where is the science going to come from?

Thirdly, how will the Government calculate the trade-offs that will inevitably have to be made? Creating more space for nature means less space for human activity, be it space for producing food, building houses, roads or businesses—a point made by my noble friend Lord Cameron of Dillington. Fourthly, and more particularly, proposed new Schedule 7A to the 1990 Act refers to a “biodiversity metric”. I hope the Minister can shed light on how this is to be calculated. For example, how many stone-curlews equal one purple emperor?

Last but not least, what the sanctions be if the Government fail to meet their biodiversity targets? We have been told that the new office for environmental protection will hold public authorities, including Ministers, to account. I share the Minister’s respect and admiration for the chair, Dame Glenys Stacey. However, as we have heard this afternoon, there is a tide of expert legal opinion that the Bill does not give the OEP sufficient powers or independence to fulfil its role. These points have been eloquently explained by my noble friend Lord Anderson of Ipswich and others. I would also like to acknowledge a meeting I had with the Minister, the noble Lord, Lord Anderson, and Tim Buley QC to discuss these points.

In sum, I like the declared intentions of the Bill. I know the Minister is committed to improving our environment, but there is still a great deal of work to be done to explain how this will be achieved. I look forward to working with him and other noble Lords as we debate and improve this important Bill.

Environment Bill

Lord Krebs Excerpts

Committee stage
Monday 21st June 2021 Lords Chamber

[Lord Randall of Uxbridge (Con) [V]]

My Lords, I support my noble friend’s Amendment 5, to which I added my name. It is always good to follow my noble friend in his wise words. I have to say, though, that I rather feel out of my depth in this debate. I thought that it was going to be quite a simple subject, but I should have thought that we have such experts in your Lordships' House. I have been listening to the legal side of things, which I have little understanding of, while making law, and the excellent speech by the noble Baroness, Lady Bennett of Manor Castle, on a much more scientific, biological aspect.

I come at this with a view that we want to make things simple. We are going to come, in the group following the next, on to a connection with nature. That is my biggest concern. The noble Baroness, Lady Bennett, said that the word “biodiversity” arrived in 1985. I was not a young man, necessarily, when it first appeared, and I had been used to using other words. I have been involved in this environmental field as an amateur for all my life, and I accept “biodiversity”—I use it myself—but I am not sure that the people we want to connect more with nature do understand it. I would say to those noble Lords who have mentioned international things that the European Union introduced Natura 2000; it did not call it “Biodiversitas 2000” or anything else. “Natura” and “nature” have their place. I would regard myself as an amateur naturalist; I do not know how you would say I am an “amateur biodiversity person”.

I think this has been a very useful debate. I end up more confused, though that is a position I often find myself in, listening to debates. But I have to say that there is a real need for us to make sure that our fellow citizens understand that the environment is about what they hold dear—and that is nature. When I was at school, we had nature study; we did not have biodiversity study. But I admit that I am not in the first flush of youth.

[Lord Krebs (CB) [V]]

My Lords, one could argue that what is good enough for Sir David Attenborough is good enough for this Bill. Sir David’s 2020 TV programme “Extinction”, in which he talked about biodiversity, was watched by 4.5 million viewers on its premier. Those people, and the millions more who have watched it subsequently, will have some idea of what biodiversity is.

Although I do not support this amendment for the reasons that my noble and learned friend Lord Hope of Craighead so clearly articulated, I am grateful to the noble Lord, Lord Blencathra, for tabling the amendment, because it provides me with an opportunity, following the noble Baroness, Lady Bennett of Manor Castle, to ask the Minister to clarify precisely what the Government mean when they talk about biodiversity. As my noble and learned friend Lord Hope of Craighead said, words do matter. If the Government are to maintain the term “biodiversity” in this Bill, which I hope they will, please could they explain what it actually means?

I am now going to get a little bit technical. Ecologists recognise a number of different, but interrelated, meanings of the word “biodiversity”. At its simplest, it refers to what is called “species richness”—simply the number of species inhabiting a defined geographical area, such as England. A more sophisticated variant of species richness takes into account the relative abundance of different species. On this measure, an area populated by one extremely common species and, say, five very rare ones will be less biodiverse than if all six species were roughly equally abundant.

As the noble Baroness, Lady Bennett of Manor Castle, has already said, biodiversity can also include genetic diversity within a species. For instance, one might be particularly interested in preserving subspecies that are unique to this island, such as the native pied wagtail, motacilla alba Yarrelli. Furthermore, biodiversity might encompass the genetic distinctiveness of species, by placing a premium on species with no close living relatives on the planet, or on endemic species, such as eudarcia Richardsoni, a micro-moth found only in Dorset.

Finally, biodiversity might encompass the diversity of habitats, such as woodland, heath, peatbog and intertidal marshes, found within a geographical area. Many ecologists distinguish between what they call alpha diversity—species richness within a habitat—and beta diversity, which is diversity between habitats.

I hope that the Minister, in his response, or afterwards in writing, will explain what the Government mean when they talk about biodiversity. At the same time, it would be helpful if he could explain the difference between biodiversity and species abundance, as introduced in Amendment 22, which we will debate later.

[Baroness Hayman of Ullock (Lab)]

My Lords, this has certainly been an interesting discussion around the proposal of the noble Lord, Lord Blencathra, to change the wording of the Bill to use the term “nature” instead of “biodiversity”. I can understand why he would want to propose this change, as it is an easier concept for many people to grasp and understand, as many noble Lords have said during our discussion. However, the Minister did explain in his winding-up speech on Second Reading that the two terms are not exactly the same. The noble Earl, Lord Caithness, referenced the example that the Minister gave:

“Planting a Sitka spruce monoculture might give us more nature, but it would not give us more biodiversity”—[Official Report, 7/6/21; col. 1308].


A number of noble Lords have talked about definitions and the definition of “biodiversity” as opposed to the definition of “nature”. I would like to thank the noble Baroness, Lady Bennett of Manor Castle, and the noble Lord, Lord Krebs, for providing us so much information. I have learned an awful lot more in this debate than I was expecting. A number of noble Lords have looked at dictionary definitions, so I thought I would add to this by having a look at what the Oxford English Dictionary has to say. It describes “nature” as

“The phenomena of the physical world collectively; esp. plants, animals, and other features and products of the earth itself, as opposed to humans and human creations”


whereas—I would be interested to discuss this further with the noble Baroness, Lady Bennett of Manor Castle, at some point—the dictionary describes “biodiversity” as

“the variety of plant and animal life”.

So these things are different, and my thinking is that the Oxford definition seems to show that “nature” is a broader concept and “biodiversity” fits within that. Therefore, I am not quite sure how helpful Amendment 261 will be.

This is a really important Bill, and, as my noble friend Lord Rooker said, clarity as to exactly what is meant by the wording and terminology in this Bill—and in all legislation—is essential to avoid confusion and potential legal challenge. I am sure that the Minister will be able to provide us with more detail on the wording used and the way that the decisions have come, but noble Lords have requested more explanation of exactly what is meant in the Bill by “biodiversity” and what is going to be demanded of improvements to biodiversity as we go through implementing what the Environment Bill is looking to do.

In short, I have enjoyed listening to the debate, but we are happy to retain the use of “biodiversity” in the wording of the Bill.

Environment Bill

Lord Krebs Excerpts

Committee stage
Wednesday 23rd June 2021 Lords Chamber

[Lord Krebs (CB)]

My Lords, I wish to speak in support of Amendment 43 on the need for binding interim targets. I also support Amendments 16 and 18 in the name of the noble Baroness, Lady Bennett of Manor Castle, and, in many ways, support Amendment 15 about the need for evidence, in the name of the noble Lord, Lord Lucas. The Government’s position on interim targets, as presented by the Minister in another place, Rebecca Pow, appears to be that legally binding targets would not be appropriate because of the unpredictability of the environment. In other words, events may make the targets hard to achieve. However, by this logic, the Government should not set themselves any targets at all, as unpredictable events will surely intervene.

The noble Baronesses, Lady Bennett of Manor Castle, Lady Hayman of Ullock and Lady Young of Old Scone, all referred to the Climate Change Act as showing us the value of legally binding interim targets. As we have already heard, the Climate Change Committee advises on the five-year carbon budgets that are—I underline this—the cost-effective road map to net zero. One important point that the Climate Change Committee makes is that you cannot back-end all the actions because it will cost you more. You have to take early steps to save later on. So far, the Government have accepted the first six carbon budgets, taking us through to the mid-2030s, so they are legally binding commitments. These budgets not only provide us with transparency about whether the Government are on track but also a clear indication of where progress has been good and where it has not. That is why we know that the Government, in spite of good progress in some areas, are not currently on track to meet their longer-term target of net zero by 2050.

I see no compelling reason why we should not do the same for nature’s recovery. I admit that in some ways it is more complicated than cutting greenhouse gas emissions. The path to net-zero emissions by 2050 can be measured in a single, common currency—carbon dioxide equivalents—and we have clearly defined ways of decarbonising our economy, whether it is through renewable energy, better insulation of homes or electric vehicles and so on. For nature’s recovery, there is as yet no single, common currency nor are there the well-defined building blocks for achieving long-term targets.

However, the Government will have to work out the answers to these questions if they are to meet their longer-term targets, so why not start right away and meet legally binding interim targets? Statutory interim targets would enable all of us to see how the targets are being calculated—which relates back to the amendment tabled by the noble Lord, Lord Lucas—what progress is being made and what needs to change. You can see what happens without binding interim targets by looking at progress on climate adaptation. In contrast to the Climate Change Committee’s advice on mitigation—cutting our greenhouse gas footprint—its advice through the Adaptation Committee on building resilience for the inevitable future climate change that we will experience is not translated into binding targets. I should note in parentheses that I served for eight years as the first chair of the Adaptation Committee, as a member of the Climate Change Committee itself.

Last week, the Adaptation Committee reported on its latest climate change risk assessment. It said:

“Alarmingly, this new evidence shows that the gap between the level of risk that we face and the level of adaptation underway has widened. Adaptation action has failed to keep pace with the worsening reality of climate risk.”


That is what happens if you do not have binding interim targets, and I fear that without legally binding interim targets we will find exactly the same failures by the Government with regard to the commitments in this Bill.

[Lord Randall of Uxbridge (Con) [V]]

My Lords, I always feel rather humbled when I follow such eminent noble Lords, particularly the noble Lord, Lord Krebs.

I added my name to Amendment 43 and support the general thrust of these amendments with regard to targets and interim targets. If we are not careful, targets just become aspirations. Without being too flippant, I have a target to lose a number of pounds—perhaps stones—in weight, but, without a statutory requirement to do so within a particular period, I am afraid that the time slips by and I find a good excuse, whether it is lockdown, the weather, all sorts, not to do it now but to do it next month. If we are serious about this, it is important to have interim targets that are statutory. I will not go on, except to echo the sentiments of my noble friend Lord Caithness in very highly recommending to my noble friend the Minister a visit the Game and Wildlife Conservation Trust’s Allerton project in Loddington, which has done a lot of research.

My noble friend is absolutely right that you cannot just magic-up these things without detailed research. There are some uncomfortable truths. He mentioned curlews, for example, and he is talking about predation. There is a possible problem that by increasing woodland we are providing more cover for predators, so, where that is near habitat that might be good for curlews and redshanks, we are actually providing more refuge. These things are complicated, but we must have the interim targets on a statutory basis, otherwise they can just get lost in the sands of time.

--- Later in debate ---

[Lord Krebs (CB)]

My Lords, I wish to speak in support of the amendment, Amendment 17, in the name of the noble Lord, Lord Lucas. As he explained, it aims to ensure that the Government commission the relevant research so that they understand what they are doing when they aim to meet environmental targets.

If we take biodiversity targets as an example, it is one thing to set a target of halting the reduction in biodiversity but it is quite another to figure out how to achieve the target. The noble Earl, Lord Caithness, entertained us a few minutes ago with stories of lapwings and curlews, and the research carried out by what used to be called the Game Conservancy Trust but, I believe, now operates under a different name. If noble Lords will forgive me for a short digression, I will complement the noble Earl’s story about lapwings and curlews with the narrative of the large blue butterfly.

That butterfly was extinct in this country by 1979, despite over 50 years of effort to halt its decline. Today it thrives in 33 different sites in south-west England. This is one of the classic cases of how restoring a species and increasing its abundance depended on detailed research. The secrets of success lay in the complex life history of this species, the caterpillars of which are taken into ants’ nests and tended and protected by a particular species of red ant, called Myrmica sabuleti. In return, the caterpillars secrete a nutritious liquid for the ants to feed on—an example of a mutualistic relationship. Professor Jeremy Thomas, then at the Centre for Ecology and Hydrology, discovered that the ant species is sensitive to temperature, which, in turn, depends on the length of the grass in the ants’ habitats. Changes in agricultural practice, combined with the decline in rabbit populations due to myxomatosis, had resulted in a small increase in grass length sufficient to cause the ants to disappear and, hence, the butterflies to die out. As a result of his research, slight changes in agricultural practice allowed us to maintain the grass at the right height and successfully restore butterfly populations.

Unfortunately, that conservation success story is the exception rather than the rule. As Professor Bill Sutherland of Cambridge University has documented, many, if not most, government-led initiatives to enhance biodiversity and restore nature have failed because they were based on hunch rather than proper scientific evidence. This includes the CAP Pillar 2 environment schemes. I know that from my own experience. My research group at Oxford was funded by the Ministry of Agriculture, as it was in those days, for many years to work out how to alter arable farming practice to support winter populations of farmland bird species. Although we discovered simple and effective remedies, they were never implemented.

Therefore, the noble Lord, Lord Lucas, is absolutely right to emphasise the importance of evidence on which to base the targets. However, in closing, my question for the Minister is: who will commission and pay for the necessary research to underpin the ambitions of the Bill and ensure that we do not blunder blindly, as we have done all too often in the past? The major research funding body in this country is UK Research and Innovation, whose website I checked this morning. Although the environment is one of eight priority themes, if one looks within that theme, no mention is made of biodiversity, habitats or conservation. Furthermore, UKRI is facing a £539 million cut in its funding this coming year, which will mean that all its research programmes are likely to be reduced. If not UKRI, who is going to fund the research that we will need if the Bill is to achieve its high ambitions?

[Baroness Boycott (CB)]

It is a great pleasure to follow the noble Lord, Lord Krebs. I loved that story about the blue butterfly, because I have been to one of those sites, beside a railway line, outside Somerton, so I know about that brilliant ant. The noble Lord is absolutely right and I would also like to know the answer to the question he asks the Minister: who is going to fund this? After all, we all know that the Aichi targets have been more or less a total failure and nobody knows quite why. I also support the proposals on health from the noble Lord, Lord Addington; it could not be more important.

Primarily, I want to support the noble Baroness, Lady Parminter, and her Amendment 34. The Secretary of State has to seek advice from the OEP. Over the years, we have seen how advice can be handed in by cronies or the local person you know on the end of the telephone. Think of some of the really bad things that have happened: advice about how particulates in the air do not matter to health, advice that smoking is fine, or advice that fossil fuels will not cause damage. We have to make sure that when, say, you want to put an endless chicken farm on the bank of the River Wye, you get advice from someone who has been passed and guaranteed by a body such as the OEP. Of course the Minister does not have to take this advice but, if this amendment is passed, he will at least have to explain why he took the advice that he did and, if it is found wanting, he can be challenged.

--- Later in debate ---

I repeat: let us be ambitious about our target-setting. Most species are already beginning to level out and, bearing in mind that we are entering a whole new agricultural world, and that the Bill introduces a whole new raft of boosts for nature—biodiversity gain, conservation covenants, local nature recovery strategies, et cetera—I firmly believe that we can turn this around sooner rather than later. I know that ELMS are still a few years away, and I realise that species abundance reporting is always two years behind the curve but, being an optimist, I would like to hope that we can achieve an overall positive turnaround by 2032. I am sure the Minister will be able to persuade his officials that, given the right focus, both across the nation and on a localised basis, this is definitely doable.

[Lord Krebs (CB)]

My Lords, I have added my name to Amendment 24, along with the noble Lord, Lord Randall of Uxbridge, and the noble Baronesses, Lady Parminter and Lady Jones of Whitchurch. I also support Amendments 25, 26, 27 and 202.

I was going to speak in some detail to Amendment 24 but the noble Lord, Lord Randall of Uxbridge, did such a brilliant job of introducing it that I do not need to repeat anything he said—he said it far better than I could. What I want to say is this: just over 20 years ago I wrote an article entitled “The second Silent Spring?” Those who follow the environmental literature will know that in the 1960s Rachel Carson wrote a book called Silent Spring, which was really the beginning of the environmental movement. She showed how pesticides, particularly DDT, were causing irreparable damage to wildlife. My article analysed how intensive farming practices have silenced the birds in our landscapes. We now understand that reasonably well; as I mentioned in an earlier debate, we have some good evidence on which to change farming practice.

Without Amendment 24—indeed, without going further than Amendment 24, as suggested in the other amendments in this group—I will be able to write an article in 10 years’ time, in the early 2030s, called “The third Silent Spring”, which will talk about how government inaction has left us without nature recovery.

Why is it urgent to act now? I will mention a few reasons; they have already been described in earlier debates. The Minister himself pointed out this afternoon that you cannot conjure up habitats overnight. If you need a habitat such as ancient woodland, lowland heath or marshland, you need years to restore those habitats. As the noble Baroness, Lady Young of Old Scone, said, the species we are concerned about preserving and increasing depend on the habitats they live in.

Secondly, if the cause of decline has been pollution, it will take years for pollution to disappear from the environment and for us to find alternative insecticides or herbicides that are less damaging to wildlife.

Thirdly, as we heard from the noble Earl, Lord Caithness, and the noble Lord, Lord Curry of Kirkharle, among others, some species are already affected by the impacts of climate change. In the latest climate change risk assessment, published last week, risks to biodiversity and habitat from climate change are listed as one of the eight priority risks for action in the next two years. It estimates that more than a third of species are at risk of adverse effects of climate change. Unless we take action now to improve the condition of those species, they will disappear.

My final point in explaining why action is urgent now is that some species will be adversely affected by chance extreme events. For instance, the population of Dartford warblers in Surrey declined by 88% in 2009 because of a cold snap in the February, in spite of the creation of special protected areas of lowland heath. That emphasises that if we are to build resilience to future chance events, we have to act now and not dither and delay. A legally binding target will oblige the Government to come clean about what they mean by Amendment 22 and how they will deliver it, and will prevent further dither and delay while some species decline and disappear.

I have two more points. The noble Baronesses, Lady Bennett of Manor Castle and Lady McIntosh, and the noble Earl, Lord Devon, among others, asked what the amendment actually means by a “species abundance target”. I am sure all noble Lords would agree that not all species are created equal. For instance, would it be counted as a success if the Government’s policies achieved a target of increasing the abundance of clothes moths, hair lice or food poisoning bacteria such as salmonella? Some people may think those are important species to increase the abundance of, but when people think of halting species’ decline or restoring nature they are surely thinking of a wider range of species—and probably none of those three species.

Amendments 26 and 27 try to provide a more precise characterisation. We have heard a number of suggestions. The noble Baroness, Lady Bennett of Manor Castle, suggested, for example, that species at risk of decline or extinction be a possible starting point. The noble Lord, Lord Randall of Uxbridge, suggested the species in the NGO State of Nature report. Another obvious alternative would be to include the 943 species and 56 habitats covered under Section 41 of the Natural Environment and Rural Communities Act 2006.

I hope the Minister can shed a bit of light in his response on what sort of group of species will be included in the target. I also hope the target will be strengthened, as the amendment suggests. Can he also suggest how the expert group he referred to will combine these different species into a single metric? This will involve some weighting of their relative importance, as the noble Lord, Lord Cameron of Dillington, mentioned a few minutes ago.

I have one final point. The Government should be explicit about how potential trade-offs, which my noble friend Lord Vaux of Harrowden referred to earlier, might be managed. Restoring a habitat for one priority species may result in loss of habitat for another. Species A may need more marsh habitat, while species B may need dry meadows. The supply of land in this country is very limited, so choices may well have to be made. I hope the Minister will tell us a bit about how this might be done.

In summary, while government Amendment 22 looks at first sight to be a fantastic commitment, the more you look at it, the more questions it raises. I very much hope, as other noble Lords have said, that the Government will take it away and revise it, to meet the concerns that have been raised about its current form.

--- Later in debate ---

[Lord Krebs (CB)]

My Lords, I put my name to Amendment 52, also in the names of the noble Baronesses, Lady Jones of Whitchurch and Lady Parminter, and the noble Lord, Lord Randall of Uxbridge. I also support Amendment 53, in the names of the noble Baroness, Lady Parminter, and my noble friend Lady Boycott. I will not repeat what has been said about Amendment 52, but add one sentence: for me, the key issue is linking together the pieces of the jigsaw—the environmental improvement plans and the targets.

I want to ask the Minister about one point that has not been discussed so far. In Amendment 52, proposed new subsection (4)(f) refers to

“measures to minimise, or where possible eliminate, the harmful impacts of pollution on human health and the environment.”

One significant type of pollution that we have not discussed so far is noise. In 2018, the World Health Organization published a report entitled Environmental Noise Guidelines for the European Region. It says this:

“Noise is one of the most important environmental risks to health”,


second only to air pollution, and every year

“in western Europe alone at least 1.6 million healthy years of life are lost as a result of road traffic noise.”

The adverse effects of noise on health include increased risk of heart disease, cognitive impairment of children, sleep loss and tinnitus.

It is not only humans who suffer from environmental noise. According to a review published last year in the leading scientific journal Nature, noise pollution reduces the breeding success of certain bird species. A review for Defra, carried out by scientists at Bristol University, entitled The Effects of Noise on Biodiversity, points to an overall lack of evidence, but also mentions species of birds, mammals and amphibians from the UK list of species of principal importance that appear to be adversely affected by noise. Does the Minister therefore agree with me that it would be appropriate to include a target for reducing noise pollution in environmental improvement plans? The technologies for reducing noise are available, so it is a matter of the will to apply them.

[Lord Young of Norwood Green (Lab) [V]]

I am sorry, I meant to withdraw from this group, so I do not wish to comment. I apologise for not withdrawing earlier.

Environment Bill

Lord Krebs Excerpts

Committee stage
Monday 28th June 2021 Lords Chamber

[Lord Krebs (CB)]

My Lords, I strongly support the amendments in this group that aim to strengthen the role of environmental principles, including Amendments 73, 75, 76, 77 and 78. When we started out on this journey towards an environment Bill, we were told it would be a non-regression Bill. I thought the idea was not only to maintain but to strengthen environmental protections after leaving the European Union. Yet Clauses 16 to 18, as the noble Baroness, Lady Parminter, explained so clearly, appear to weaken environmental protection in at least three ways: first, by weakening the legal effect of the environmental principles—since instead of acting in accord with the principles, there is only a much weaker duty to “have regard” to them; secondly, by introducing proportionality in the application of the principles, suggesting that they may be compromised for other priorities; and thirdly, as a number of noble Lords have pointed out, by exempting many public authorities, including two government departments that were specifically referred to.

I shall focus on Amendment 78 in the name of the noble Baroness, Lady Parminter, and others, and on Clause 16(2). Can the Minister explain why he considers the introduction of proportionality necessary, when the precautionary principle, according to the High Court, already includes proportionality? I strongly disagree with the noble Baroness, Lady Neville-Rolfe, and the noble Viscount, Lord Trenchard, and I hope this example will help to explain why there is no need to replace a precautionary principle with a proportionality principle.

I refer to the High Court judgment of 28 May 2021 in the case of Natural England applying the precautionary principle in relation to nitrogen loads in the Solent. In his decision in favour of Natural England, Mr Justice Jay said that Mr Elvin, who was representing Natural England

“also submitted that the precautionary principle embodies both proportionality and a degree of inherent flexibility to reflect the nature of the harmful outcome. … If all that Mr Elvin was submitting was that in some circumstances it would be close to impossible to obtain precise scientific data and consequently it may be appropriate, as well as proportionate, to draw from generic data and experience in analogous situations, I would agree with him. … But that is the whole point of the precautionary principle: the uncertainty is addressed by applying precautionary rates to variables, and in that manner reasonable scientific certainty as to the absence of a predicated adverse outcome will be achieved, the notional burden of proof being on the person advancing the proposal.”

There is no need for a principle of proportionality according to the High Court; the precautionary principle includes proportionality. I look forward to the Minister’s response to this example.

Finally, I refer to the extended list of environmental principles in Amendment 75 in the name of the noble Baroness, Lady Jones of Moulsecoomb. One principle in the extended list is the

“use of the best available scientific knowledge.”

I do not understand why that is not in the Government’s list, because it is surely uncontroversial that the best scientific evidence should be used to make determinations about environmental matters. Good science is particularly important since many key scientific matters—the safety of certain pesticides, for example—are hotly contested. It is important that we have a good understanding of where the certainties and uncertainties in the science lie. I look forward to the Minister’s response.

[Lord Berkeley (Lab)]

My Lords, I support some of the amendments in this group in the name of the noble Baroness, Lady Jones of Moulsecoomb, and others. I support the views of the noble Lord, Lord Krebs, who just spoke about the importance of the list of environmental principles contained in Amendment 75.

We are in danger of having a debate over a more detailed list, that some noble Lords have said may be unenforceable, and a higher-level list which, sadly, many people would say was a bit like motherhood and apple pie and probably unenforceable for that reason. I think the list in Amendment 75 is extremely good. But, as other noble Lords have said, environmental interests can conflict with commercial interests, even if they are hidden by something that is called “environment.” A debate can sometimes use pretty abstruse environmental information to put forward an argument that is not necessarily compliant with everything that should be on this list.

I was involved in the Aarhus convention some years ago, and that seems to sum this up. It is a great shame we do not have it and it has to go back in here if this amendment is accepted; it is about public participation and how to extract information from Governments and public bodies wishing to hide it until it is too late to cause any problems. It is very important to put this in more detail in the environmental principles.

I am also concerned about exemptions. The noble Baroness, Lady Boycott, and my noble friend Lady Young of Old Scone mentioned the example about trees, which was quite frightening. Some friends from Plymouth who live next to one of the muddy creeks said that the MoD turned up with a jack-up barge a few weeks ago. They asked, “What is this jack-up barge doing? This is mud, which is quite environmentally friendly—there are lots of birds, fish and everything else,”. The MoD said, “We are going to put a large pylon in to help the submarines go into one of the docks in Plymouth.” My friends asked, “Shouldn’t you have told anybody? Shouldn’t you have told the local council? Shouldn’t you have consulted the residents along this little muddy creek?”

They ended up having three public meetings about this, with the top brass of the Navy turning up with an ever-increasing number of stripes on their arms to say how important this particular pylon was. They said in reply, “Anybody who knows anything about pilotage or moving big ships knows that you do not need this anyway, so why are you doing it? You’re supposed to be the experts”. We can go into the navigation issues, but that does not really matter. The point is that this is another example of the MoD trampling over people. If my friends had not phoned up those at the council and asked whether they knew about this—oh no they did not—it would have gone ahead, and they would have had a great big pylon in the middle of a rather nice creek which was quite happy as it was.

Unfortunately, the MoD has a reputation for not always consulting and not always thinking about whether something is really necessary. My view on so much of this is that we say it is necessary for A, B or C—and the noble Baroness, Lady Neville-Rolfe, said that we have to move forwards, or something like that—but we must occasionally think “Can we do without it?” We do not have to go back to the horse and cart, but life and the environment might be much better if we did do without it.

--- Later in debate ---

[Lord Krebs (CB)]

My Lords, before I turn to the amendments in this grouping, I refer to a comment that the noble Earl, Lord Caithness, made in relation to the grouping including Amendment 73 when he pointed out that the Minister had not actually answered my question. In his reply the Minister said he had answered it, but I will just repeat the question which he did not answer—I do not expect him to answer it right now but I hope he will at some point. I said: “Can the Minister explain why he considers the introduction of proportionality necessary, when the precautionary principle, according to the High Court, already includes proportionality?” I then went on to quote in detail the judgment of 28 May 2021 from the High Court. I therefore hope that at some point the Minister will respond to that question.

I support all the amendments in the group including Amendment 82 and I am especially grateful to my noble friends Lord Cameron of Dillington and Lady Boycott for leading us into what is perhaps the core debate of the Bill: the role and nature of the office for environmental protection. As has already been said, this is the first of a series of amendment groupings that we will discuss in the coming hours which deal with the independence and enforcement role of the OEP.

The Government promised us a strong and independent OEP and, as we have already heard, many of us feel that we have been short-changed. I remind your Lordships of a score line: 25-0. This is not the forecast for the England-Germany game tomorrow but the number of speakers at Second Reading who expressed concerns about the OEP not having enough independence or teeth—25—versus those who thought it had too much of both: zero. There is no doubt about the strength of feeling across the House on this matter. As others have already spoken with great force and clarity on the issues, I wish to add only one personal anecdote, relating to ministerial involvement in appointments. This is particularly relevant to Amendment 85 in the names of the noble Baroness, Lady Jones of Whitchurch, and the noble Baroness, Lady Young of Old Scone.

A few years ago, when I was chair of the Adaptation Committee of the Climate Change Committee, I went through the standard appointments procedure to select two new committee members. The selection panel was chaired by a Defra senior civil servant and included the requisite independent member. The panel unanimously agreed on the two best candidates. The then Secretary of State rejected both candidates because she did not think they had the right profile to serve on the committee.

If we are to have confidence in the genuine independence of the office for environmental protection, there has to be some transparency and independence about the recruitment, not just of the chair but of board members, as proposed in Amendment 85. I therefore hope that the Minister will take that amendment and the other amendments in this grouping seriously and that he will respond appropriately.

[Lord Hope of Craighead (CB) [V]]

My Lords, while I do not support every detail of Amendment 82 and tend to prefer Amendment 85, the amendment in the name of my noble friend Lord Cameron of Dillington makes a very important point of principle, which I support. The independence of the office for environmental protection is crucial if it is to have public confidence. As the Constitution Committee, of which I am a member, said in its report on the Bill:

“It is essential that such an important public body be independent of the government.”


It is true that paragraph 17 of Schedule 1 states:

“In exercising functions in respect of the OEP, the Secretary of State must have regard to the need to protect its independence.”


The question is whether the provision in Schedule 1 is sufficient and appropriate to ensure that independence. I very much doubt that it is sufficient, which is why I said what I said at the beginning of this intervention.

The amendment, which provides for the appointment of a commissioner who is to be the chief executive of the OEP, would be well worth considering as an additional safeguard for the composition of this very important body, as indeed the alternative suggestion in Amendment 85 would be.

The provisions of Clause 24 about guidance by the Secretary of State to which the OEP must have regard in

“preparing its enforcement policy, and … exercising its enforcement functions”

are worth bearing in mind, because they show how important it is that it should be seen to be independent when, as will so often happen, a government proposal raises environmental concerns. The words “have regard to” are not the same as “must follow”. They leave room for independent thought and judgment. It is that aspect of independence which is so important, and why the amendment in the name of my noble friend Lord Cameron is so well worth considering carefully in this debate.

--- Later in debate ---

[Lord Rooker (Lab)]

My Lords, very briefly, the Bill does not require the Secretary of State to pay. Subsection (1) requires him to pay what he thinks is reasonable, which is not altered by this. I see the benefit of a five-year budget, but the key point is to have it published. That way, the Select Committees and the National Audit Office can check on performance. Looking at proposed new subsection (5) and its detail about the work pattern, if they do not deliver an effective framework that is economic, they will be called to account by the Public Accounts Committee. The NAO needs to know what their plan for the budget was to start with.

So the key issue in this amendment is for the budget to be laid before Parliament and published. Publishing the budget is unusual for non-departmental public bodies. Non-ministerial departments are different, because their budget is separated out, and outsiders can check whether the funds are being cut. It is not always possible to do that with executive bodies and non-departmental public bodies. Publishing it means that the NAO and the Select Committees in the other place can check whether or not the Secretary of State paid them what they thought was necessary to do the work they planned to do. If the work is not done, someone needs to find out why; it is much easier to do that if you had a published budget to start with.

[Lord Krebs (CB)]

My Lords, in speaking briefly in support of this group of amendments, I refer back to the budget of Natural England. I seek absolute assurance from the Minister that the OEP will not suffer the same fate as Natural England has.

Between 2010 and 2020, Natural England’s budget was cut by almost two-thirds. In a letter to the chair of the Environmental Audit Committee in another place, dated 2 November 2020, the chair of Natural England, Tony Juniper, wrote:

“Natural England’s current funding is below the level required to deliver all of our statutory duties to a good standard. That in itself presents several key risks including increased legal challenge, lost opportunities for environmental enhancement and the wider effect that presents on wellbeing.”


He went on to list the areas of work that had been curtailed or reduced as a result of the funding cuts. These included land use planning, species recovery, wildlife licensing, national nature reserves, SSSIs, landscapes, agri-environment, evidence gathering and partnership funding, for instance for community-based initiatives with parish councils.

The Secretary of State acknowledged to the Environmental Audit Committee that the cuts had been severe and, in May this year, Natural England had an increase of 47% in its budget. In spite of this increase, Natural England’s budget for 2020-21 of £198 million is still below the £265 million it received in 2008-09. In going into this example in some detail, my point is that we certainly do not want to find the OEP, in five or 10 years’ time, in the same state as Natural England has found itself, with the consequent damage to our environment.

To repeat what I started with, I very much hope, therefore, that the Minister will confirm that the OEP, with a long-term settlement, will have sufficient resources to carry out its job; and, importantly, that when there are cuts to government expenditure across the board, which there will no doubt have to be to pay the huge bill that we have racked up as a result of the Covid pandemic, the OEP will be one of the protected areas and will not just take a salami slice along with everybody else.

[Lord Cameron of Dillington (CB) [V]]

My Lords, after my remarks a moment ago on the independence of the OEP, it will come as no surprise to your Lordships that I strongly support the principle that the OEP should have as much financial independence as possible and that I therefore support these amendments.

Funding is vital. I note that the correspondence from Natural England that the noble Lord, Lord Krebs, just read out could equally be replicated in correspondence from, I suspect, the Environment Agency to Defra, because the same incredible cut—up to 70%, I believe—has happened to the Environment Agency. So funding is absolutely vital for the proper operation of all these NDPBs. In my view, the OEP’s budget should not be at the discretion of the Secretary of State for Defra.

I believe that the public at large will take a great deal of interest in the work of the OEP—if not, they certainly should do—so anything that makes the OEP’s finances more transparent to the public, more long-term and more the business of Parliament rather than at the whim of the department gets my approval.

--- Later in debate ---

Moved by

[Lord Krebs]

94: Schedule 1, page 134, line 3, leave out “have regard to the need to”
Member’s explanatory statement
This amendment makes the independence of the OEP an absolute requirement.

[Lord Krebs (CB)]

My Lords, with the leave of the House, I will move Amendment 94 on behalf of the noble Baroness, Lady Jones of Whitchurch, who will speak later in the group. I will speak also to Amendments 98 and 99, in the names of the noble Baroness, Lady Jones of Whitchurch, and myself; Amendment 100, in the names of the noble Baroness, Lady McIntosh of Pickering, and the noble Lord, Lord Teverson; and Clause 24 stand part, in my name and those of the noble Baronesses, Lady Jones of Whitchurch, Lady McIntosh of Pickering and Lady Parminter.

All these amendments concern the independence of the OEP, a topic we have already debated at some length, in particular in relation to the group beginning with Amendment 82 in the name of the noble Lord, Lord Cameron of Dillington, and the noble Baroness, Lady Boycott. Amendment 94 in this group would make the independence of the OEP an absolute requirement, rather than something that the Secretary of State merely has to “have regard to”. Amendment 98 would remove the requirement for the OEP to have regard to the Secretary of State’s guidance, and Amendment 99 would require the OEP to explain why it did not follow the guidance. Amendment 100 and the opposition to Clause 24 standing part both aim, in different ways, to ensure that the OEP is as fully independent as possible, exactly in the spirit of the group beginning with Amendment 82.

I will focus on the contention that Clause 24 should not stand part, which is at the heart of many of the concerns expressed in these amendments. In some ways, Amendments 94, 98 and 99 could be seen as important sticking plaster, but a more comprehensive way of dealing with the concerns expressed in these amendments would be to remove Clause 24 altogether. Clause 24 empowers the Secretary of State to issue guidance to the office for environmental protection on its enforcement policy, including how it should determine whether a failure to comply with the law is serious. However, the clause does not define what constitutes serious, nor the areas in which the Secretary of State should not give guidance to the OEP. It does not say whether the Secretary of State should issue guidance on a specific case, for instance the development of a new nuclear power station, or on general principles, such as the transparent use of evidence, and it does not say when and how often the Secretary of State may issue guidance. Therefore, it is hard to judge how wide-ranging the guidance will be, how often it will be given and whether it will be used to constrain the independence of the OEP.

After Second Reading, the letter from the Minister attempted to reassure us that the guidance powers would not compromise the independence of the OEP, and I thought I heard him say earlier this afternoon—but I may be wrong—that there would be no need for the OEP to follow the guidance. In that case, how do the Government justify the inclusion of Clause 24 at all? Well, according to the Secretary of State in a recent radio interview, it is to avoid the OEP becoming an “unaccountable regulator” or “making it up as it goes along”. If this is the case, it suggests to me a lack of trust in the OEP chair and board, as well as a wish to control the way it operates.

The Government may well argue that this is a fairly standard clause, and although it is true that similar powers to issue guidance do exist for some public bodies, including Natural England and the Climate Change Committee, there is a crucial difference between these bodies and the office for environmental protection—because, as we have heard many times today, the OEP has responsibility for enforcing potential breaches of the law by public bodies, including Ministers, which most other non-departmental public bodies do not have.

A better comparison might be with the Information Commissioner's Office, which is not subject to similar guidance in its enforcement function. Another comparison is the Food Standards Agency, which, as the noble Lord, Lord Rooker, explained, is a non-ministerial government department accountable to Parliament through the Secretary of State for Health and Social Care. By coincidence, Section 24—the same number—of the Food Standards Act 1999 covers the situation in which the FSA is deemed to have gone off the rails. It allows the Secretary of State to intervene only if the Food Standards Agency has seriously failed to fulfil its duties or international obligations. The Secretary of State may then give direction for remedying the failure. Otherwise, the Food Standards Agency is not subject to ministerial guidance.

As noble Lords will be aware, I was the first chair of the Food Standards Agency, and in a later period the noble Lord, Lord Rooker, was also chair. During my five and a half years Health Ministers considered invoking Section 24 on one occasion: when the manufacturers of natural sausage casings made from sheep’s intestines claimed incorrectly that we had not given them the statutory notice period before introducing a ban on their use because of the potential risk that they might contain the infected agent that causes BSE. So, in five and a half years, there was one use of it, which was very rapidly resolved, and the Secretary of State did not need to issue any instruction.

--- Later in debate ---

I hope that this goes some way towards reassuring noble Lords, and I ask that the amendment be withdrawn.

[Lord Krebs (CB)]

My Lords, I thank all noble Lords for their excellent contributions to this debate; it is the second major debate we have had today about the independence of the OEP. I emphasise again to the Minister the strength of feeling around the Committee, not just among the cross Cross-Benchers, in which I join my noble friends Lord Cameron of Dillington and Lady Boycott, but from all groups.

The Minister did a valiant job in trying to defend the position of leaving Clause 24 in the Bill and in rejecting the other amendments, but it felt rather less than convincing and I do not think that we have yet fully dealt with some of the key points that were raised by contributions. For example, my noble and learned friend Lord Hope of Craighead and my noble friend Lord Anderson of Ipswich made important points. My noble and learned friend Lord Hope talked about the fundamental contradiction in the Bill and how the words are really important, and my noble friend Lord Anderson asked what the point of guidance is if not to influence. So I really do not think that we are out of the mire yet on this issue.

I will not go through all the contributions, because there were so many important points made in the excellent summing up by the noble Lord, Lord Teverson, and the noble Baroness, Lady Jones of Whitchurch. But I want to reflect on something that the noble Lord, Lord Rooker, said, which was sort of, “Be careful what you wish for”—if you are a Minister and you want to have influence and control over a supposedly independent body, it may come back to bite you. I will give a personal anecdote. When I started to set up the Food Standards Agency, the then Secretary of State for Health said to me, “John, I am in a nightmare situation. I have no control over you, but I have to take responsibility for you in accounting to Parliament”, to which I said, “No, you have the dream scenario: if things go well, you take the credit; if things go badly, you blame me”. So it is not all downsides to give the OEP greater independence, although the Minister seemed to feel that it would be.

Without delaying your Lordships further, because the hour is late, I again thank all those who have contributed, and the Minister for his response. I am sure that we have not resolved this and that we will come back to the matter of OEP independence when we come to consider the Bill at the next stage. But, as in earlier debates, a number of noble Lords, including the noble Lord, Lord Cormack, emphasised that we ought to be able to find a compromise. I hope that, between now and Report, we can have further conversations and find out whether there is a way of avoiding confrontation at a later stage. Having said that, I beg leave to withdraw my amendment.

Amendment 94 withdrawn.

--- Later in debate ---

[The Duke of Montrose (Con) [V]]

My Lords, in addressing the amendment put forward by my noble friend the Minister, the Committee has today listened to some skilful analysis of the devolution situation from the noble and learned Lord, Lord Hope. I await his comments on this amendment with some interest.

I want to probe my noble friend the Minister a little more on one aspect of what he sees as the content of his amendment, which refers to

“how the OEP intends to co-operate with devolved environmental governance bodies.”

Like some of your Lordships, I sat in the House as we debated Schedule 5 to the Scotland Act in 1998. The argument ended up being not to reserve the environment to Westminster, but there was still the oversight of all the EU’s environmental legislation to fall back on. That is the situation we face at the moment.

The Government are working on the problems that this now presents. I understand that they have hopes of a legislative consent Motion for their ideas. We foresaw some of this when we debated the Trade Bill in January. The Government were prepared to admit that one route to achieving agreements was to have a number of framework agreements. How many frameworks do the Government expect to have in relation to the environment, and what mechanism are they using to reach agreement on any of them? Are they working on any of these? If so, what stage have they reached? I wonder whether my noble friend could give us some details either now or in writing.

[Lord Krebs (CB)]

My Lords, I will make a couple of brief points in relation to Amendment 96 in the name of the noble Lord, Lord Lucas. First, a system exists that I think would meet what the noble Lord is asking for: I refer, of course, to the guidelines developed by Lord May of Oxford when he was the Government’s Chief Scientific Adviser. These guidelines have three core principles governing the use of evidence in policy-making, which is partly what the noble Lord, Lord Lucas, was talking about. They are: first, seek a wide range of expert opinion; secondly, recognise uncertainties in the evidence; and thirdly, openness and transparency in the use of evidence. These guidelines will be especially important for the OEP because many, if not most, of the environmental issues that it will deal with will be ones where the evidence is contested. People will have strongly held opposing views, or they will claim that the evidence is incomplete or that there is uncertainty.

The answer to the request from the noble Lord, Lord Lucas, is for the OEP to follow the Government Chief Scientific Adviser’s guidelines. At the same time, the OEP may wish to follow the example of many other public bodies in conducting as much of its business as possible in public meetings so that the decision-making processes can be directly observed and the evidence, as it is being evaluated, can be studied by the public. Does the Minister agree that it would be valuable if the OEP operated under the guidelines set out by the Chief Scientific Adviser?

[Baroness Bennett of Manor Castle (GP)]

My Lords, it is a great pleasure to follow the noble Lord, Lord Krebs. As always, his contribution has made a useful addition to the debate and he has put down a useful specific question.

I rise to speak in favour of the ideas and aims behind the amendment in the name of the noble Lord, Lord Lucas, although I come at this from a somewhat different direction. The noble Lord suggested that this was the way the Government, or the OEP, could lead the public; I suggest that we look at it from the other way around. On many environmental issues, whether you look at the climate strikers or last year’s people’s assembly on the climate, the public have in fact been leading and pushing companies and the Government to act. It is very helpful to the public to have available the information and published material, but rather than thinking about this as us leading the public, let us see it in other terms: as more of a partnership.

This amendment also takes us back to some of our debates on the Agriculture Bill, when we talked about the lack of agricultural extension and of independent advice to farmers. Indeed, a group of farmers I talked to last week were bemoaning the lack of independent advice available to farmers. A great deal of the information that might be collected and put together by the office for environmental protection would also be of great use to farmers. I think here of what the noble Lord, Lord Curry, said on the last group of amendments about regulatory capture. We want this to be available.

As the noble Lord, Lord Lucas, said, a lot of research is behind paywalls. We are lucky enough in your Lordships’ House to have the wonderful Library; we can ask it to get anything we want, but that is not available to the public. It is a great pity that far too much publicly funded research is still hidden behind paywalls. The research that guides the OEP should be publicly available.

Finally, I turn to the questions from the noble Lord, Lord Lucas, about oat milk. I remind him that the practical reality of our economy is that a great many externalised costs are not paid by the producers or sellers of a product and are therefore not reflected in the price tag. Many farmers are barely being paid, or not being paid, the production costs of their milk, reflecting the economic power of the supermarkets. I also point out that you can of course make your own oat milk, which would cut out the middle person, save you a great deal of money and cut out a great deal of packaging as well.

Environment Bill

Lord Krebs Excerpts

Committee stage
Wednesday 30th June 2021 Lords Chamber

[Lord Thomas of Cwmgiedd (CB)]

It is a pleasure to follow the noble Lord, Lord Rooker, and speak to the same amendments.

If the Bill is to be effective and to work, there are two main areas that need change. The first is clarity in relation to all the duties imposed because without clear duties, interlocking targets, interim targets and environmental plans, there is no effective concrete law that can be applied.

The second area where it has changed is enforcement. On Monday we had a useful debate on the independence of the OEP. Today, we turn to a second aspect of enforcement: the remedies that must be available if court proceedings are required. I very much hope that the independent strength and force of the OEP, together with clear duties set out in the Bill, will mean that recourse to courts is rarely necessary. However, that may be a pious hope because it is obvious that in this area there are immense conflicts of interest between those looking at the long term and those who seek to protect short-term or other interests. It seems to me, therefore, that an amount of litigation and enforcement action taken through the courts is inevitable.

I believe that view must be shared by the Government because why, otherwise, would they seek to constrain two important aspects of our common-law tradition? The first is to curtail the judicial function and the second is to curtail the discretion of the enforcer. I will deal with each aspect in turn but, unless changes are made to this part of the Bill, I entirely agree with everyone who has spoken about teeth. I will not attempt to describe the kind of teeth required, only to say that they must ensure that the Bill is not a long series of statements but will actually work for future generations.

I will now deal with each amendment in turn. I will deal with them briefly and in the order in which they are set out, not as the noble Lord, Lord Anderson, did, but I entirely agree with him that the critical amendment is Amendment 107. Amendment 105 changes the provision in the Bill that seeks to stop proceedings at a particular point in time being brought together. I find this very difficult to fathom. It is a very inefficient way of dealing with things, apart from being unjust. A court always likes to have all the relevant cases in front of it so that it can do justice. I ask the Minister: why do the Government wish to impede justice in this respect?

Amendments 106 and 107 can be taken together because they deal with the consequences of a decision by the court that what has happened has not been lawful. It seems to me very difficult to understand how a Government who believe in the rule of law—and I believe this Government firmly believe in the rule of law—wish to say that there are to be no consequences of a failure to comply with the law. That is very difficult to understand. However, much more serious, as the noble Lord, Lord Anderson, and others have pointed out, is the restriction on remedies. I have no doubt that the Department for Environment, Food and Rural Affairs and its very able lawyers are well aware that, from time to time, in several cases, judges have to deal with circumstances where the rights of other people are affected or there is a question about good administration. A judge then takes, for example, the prejudice to the rights of certain people on the one hand and balances it against the considerations on the other. That is an ordinary judicial function.

The Bill seeks to take that function away from a judge by imposing a restriction that requires a judge to be satisfied that if one single person would suffer hardship or prejudice to his rights, that means the court cannot do justice. I ask why. To my mind, it is a very undesirable attack on the way in which traditionally in this country we have approached matters of judicial review of government action. Until now, the judges have been trusted. It is a remarkable fact that, although there are complaints from time to time that far too many decisions are overturned on judicial review, the general effect of judicial review and the knowledge of the consequences of the remedies has been to improve good administration. The Government are successful in the overwhelming number—a percentage in the high 90s—of cases. I therefore wonder: what is driving the Government in this case to curtail the doing of justice by judges? It seems to me that there is no reason whatever for it. Surely, they can trust the judges on this aspect.

The last of these amendments is to the provision that seeks to curtail the right of the OEP to bring judicial review. Why take away its discretion? Do the Government not trust it? Surely, with an agency that is independent and to be chaired by a person of the calibre of the chairman designate, it is very difficult to understand why a Government wish to restrict its discretion for the future in bringing cases. They must also appreciate that if a judicial review has brought late, the judge can refuse a remedy. There is the lock of the discretion of the trusted OEP, with judicial discretion as a backstop. Why do the Government need more? We should trust our common-law traditions and leave matters to the discretion of the judiciary and to the discretion of the enforcer.

[Lord Krebs (CB) [V]]

My Lords, it is a great please to follow my noble and learned friend Lord Thomas of Cwmgiedd. I have put my name to Amendments 105, 106, 107 and 108, together with my noble friend Lord Anderson of Ipswich, my noble and learned friend Lord Thomas of Cwmgiedd and the noble Lord, Lord Duncan of Springbank. As a mere lay man on legal matters, I have little to add to the points made so beautifully by my noble friend and my noble and learned friend. However, it would be hard to argue against the view that the OEP, if it is to be an effective enforcement body, needs to be able to wield a big stick, even if the stick is rarely used. As it stands, the Bill gives the OEP a stick more akin to a matchstick than a knobkerrie, cudgel or shillelagh.

I am very grateful to the members of the Defra Bill team for having spent two sessions with my noble friend Lord Anderson and me trying to explain why Clause 37(8) biases the scales of justice against protecting the environment and in favour of commercial interests that might harm it. Three arguments were put forward. First, environmental review will take some time to reach the court stage as it passes through the two earlier stages of an information notice and a decision notice. Therefore, a third party may have already committed a great deal of resource to a project before it comes to court and it would be then unfair to stop the project in its tracks. Secondly, it was said that the OEP has wider powers than those covered by the European Commission and court and therefore needs to have its teeth blunted. Thirdly, in some cases, for instance planning approvals, giving environmental protection too much weight might cut across other government priorities.

I do not find these arguments at all persuasive. For instance, the argument that the environmental review process is so slow that a third party could be heavily committed begs the question of whether the design of the whole process needs to be reconsidered, as Amendment 108 proposes, rather than using Clause 37(8) as a sticking plaster to rectify the problem. As it stands, it is a bit like a manufacturer making a chair with legs that are too long and then selling it with a requirement that the customer cuts the legs down before use.

Defra officials have also produced a very helpful note summarising their arguments for this part of the Bill, as the noble Lord, Lord Anderson, referred to a few minutes ago. The note makes it clear that one of the Government’s concerns, perhaps even a major concern, is that the OEP might get in the way of the planning system. My noble friend Lady Boycott referred in earlier debates to instances where housing developments could cause serious harm to valuable habitats. Perhaps a powerful OEP would be able to discourage or stop these developments—but if it did, would that be a bad thing? It certainly would not be for the species that depend on those habitats for their survival.

Environment Bill

Lord Krebs Excerpts

Committee stage
Wednesday 7th July 2021 Lords Chamber

[The Duke of Montrose (Con) [V]]

My Lords, the Bill is systematically revising so many aspects of the environment where former approaches have been lacking. A large slice of the area where noble Lords have been discussing improvement is in basically rural issues. I have declared my interests as a livestock farmer.

The Government have laid out their framework for dealing with overall environmental issues in Clauses 1 to 19—their targets, reviews and renewal plans and what they term their environmental principles. Do we reckon to approach people with a carrot or a stick? In my last intervention I quoted a phrase from Gulliver’s Travels about increasing the blades of grass from one to two, which gave a positive spin to an environmental principle and a vision for people to work towards.

In trying to invent something similar in its phraseology, I will borrow a phrase from Bob Geldof and say we are now asking as many people as possible to enlist to feed the world holistically, in terms of its air, water, biodiversity and people. By this, we could earn the thanks of future generations. There might be a catchier way of expressing it, but many feel that this is the sort of thing they should make an effort to achieve, even if we differ in our views of how to achieve it. The mountain in front of us is to learn to change the motives of countryside managers. That is the best guarantee of the permanence we are looking for.

This group of amendments focuses on biodiversity gain as a condition of planning permission. I listened with much interest to the Minister giving some clarification of what it intends to achieve for national strategic infrastructure projects. His Amendment 201A, at a quick glance, appears to be asking for the ultimate Henry VIII measure; it is almost saying that we do not know the detail of what we want to achieve, but want all the powers that might be necessary to achieve it. This echoes what those with responsibility in rural areas are feeling; we do not yet know what new support systems will achieve. But there is a critical difference in their case, as it comes without any power to change the terms other than as the Bill allows.

It is still possible that all agriculture will achieve some biodiversity once reliance is placed on crop rotations and restoring natural fertility. Can the Minister clarify, first, whether there will be some guidance on what level must be reached before land is considered suitable for biodiversity off-setting? In the same context, will assisting the achievement of biodiversity gain on a remote site be regarded as equal to a gain within the boundary of a significant site?

We are embarking on an unquantifiable change in the countryside. As farmers, we know that Mother Nature will respond, but with what? We cannot tell what the final outcome will be to it all. There will always be some looking to achieve a viable enterprise from the land, and we may have to adapt. That is where I cannot support Amendments 196 and 201AZB put forward by the noble Baroness, Lady Hayman of Ullock. She feels that 30 years is not long enough, and perhaps we all feel uneasy leaving some of this entirely in the hands of the Secretary of State. Would it make any difference to their position if the stipulation was 50 years? I heard the noble Baroness, Lady Young of Old Scone, talk about 100 years.

I was looking forward to supporting Amendment 200 in the name of my noble friend Lord Blencathra, but I gather that this is unnecessary because the Government have decided to accept it and all its implications. The only thing in my mind is whether it would be better to introduce the marine element to the main section of the Bill, as is proposed in a later group by the noble Lord, Lord Teverson. Would it still be necessary to mention “marine environment” in this section? I look forward to the Minister’s response.

[Lord Krebs (CB) [V]]

My Lords, I support Amendment 196 in the names of the noble Baronesses, Lady Jones of Whitchurch, Lady Parminter and Lady Bennett of Manor Castle, and the noble Lord, Lord Teverson. I also support other amendments in this group, which I will mention when I come to them.

I join other noble Lords in welcoming government Amendment 194B and the new Schedule 14A, which will include nationally significant infrastructure projects in biodiversity net gain. In this context, I also support Amendment 194C, which aims to close a potential loophole by including other major infrastructure projects, such as those concentred under a hybrid Bill procedure, in the net-gain requirement.

Amendment 196, as we have heard, seeks to remove the 30-year time limit for off-site compensatory habitat under biodiversity net gain. Many Peers have spoken eloquently in support of this change, although some have said that “in perpetuity” may be too long. So there may be a debate to be had: if not 30 years, how long should it be? Still, it should certainly be for much longer than 30 years.

The Government’s argument for the 30-year limit appears to be that landowners may be reluctant to maintain habitats and lock up land in perpetuity. However, if the aim is to protect nature for future generations, it is crucial for net-gain projects to have a longevity of greater than one generation. Furthermore, the development projects that net gain seeks to off-set will often certainly last much longer than 30 years, as the noble Baronesses, Lady Bennett and Lady Hayman of Ullock, mentioned. If a habitat created to compensate for damage by a development can simply be ploughed up after 30 years while the damaging development is left standing, we will not be passing on a guarantee of nature in better condition to the next generation. This is not damage avoided but damage deferred—an asymmetry that punishes nature.

As it stands, the Bill creates a carousel of land-use changes where landowners are paid to off-set environmental harm for a while before turning the land over to some other use. Instead we need lasting habitat that will genuinely help to create a nature recovery network, even if the result is fewer parcels of habitat for sale; that is the price of restoring nature. As the noble Earl, Lord Devon, rightly pointed out, we have to make hard choices about land use.

Furthermore, as others have pointed out, the creation of new habitats and the arrival of new species can often be a long, slow process. We have already heard several examples, to which I add my local RSPB reserve on Otmoor, near Oxford. It was established in 1997 by converting farmland into wetland, and it is still attracting additional new species of birds each year. A limit on the time horizon of net-gain projects will add to concerns already raised by ecologists at the Durrell Institute of Conservation and Ecology at the University of Kent, who found in a recent report that net gain is leading to large losses of green open space, off-set by the promise of better-quality habitats at an uncertain time in the future. They also found that 95% of the off-setting projects produced small disjointed areas of habitat rather than following the principles of

“more, bigger, better, more joined-up”

proposed by Sir John Lawton.

Given the shortcomings already identified in the operation of net gain, surely the opportunity in this Bill is to strengthen the protection of nature where we can, including by lifting the 30-year restriction. In other jurisdictions, such as the United States and Australia, off-sets are required to last either as long as the development itself or for perpetuity. If the Government are serious about creating real gains for nature from development then those gains need to be lasting.

Amendment 198A in the name of the noble Baroness, Lady Young of Old Scone, seems a no-brainer. Just as we have a waste hierarchy, we should surely have a biodiversity hierarchy: do not do harm, minimise harm and, lastly, compensate for harm.

In conclusion, the onus is on the Minister to explain to us why the perfectly sensible Amendments 194C, 196 and 198A should not be accepted. I very much look forward to his response.

Environment Bill

Lord Krebs Excerpts

Committee stage
Monday 12th July 2021 Lords Chamber

[Lord Krebs (CB)]

My Lords, I wanted to return to the question of sustainable fishing, which was mentioned by, among others, the noble Baroness, Lady Jones of Whitchurch. On 22 February, I asked a Question for Written Answer on what the Government’s strategy is for reducing quotas is fish stocks fall below their maximum sustainable yield. The Answer, which was rather long-winded, ended up saying:

“Where appropriate, they will set out actions to improve data collection and ways to establish sustainable harvest rates.”


My question for the Minister today is: is now the appropriate time and, if so, what action will the Government be taking to ensure that fish stocks are harvested at or below MSY?

[Baroness Bloomfield of Hinton Waldrist (Con)]

I am sorry, my briefing does not include that sort of detail. May I write to the noble Lord with an update on the maximum sustainable yields and how we are faring?

--- Later in debate ---

[Lord Chidgey (LD)]

My Lords, I speak in particular to Amendments 234 and 241 in my name. The Government have shown a commitment to tackling the issue of the poor quality of our rivers and freshwater environment. Issues around pollution and declining freshwater biodiversity have been a constant refrain in the media for some time. Freshwater species have declined by 88% since 1970—a greater decline than seen for species in forests or oceans—and one-third of freshwater fish species faces extinction. England is the home of 85% of the world’s chalk streams; we have a global responsibility to protect these ecosystems.

Species conservation strategies can potentially play an important role in conservation, although there is a call to avoid them becoming a default setting for managing the impact of development on nature. The purpose of “must” instead of “may” in this amendment is to strengthen the clause and to underpin the requirement for a conservation strategy for improving the conservation of species. This is not intended to mean all species, but those whose conservation is probably most at risk; for example, salmon and sea trout, where it is thought that there is not as yet a clear conservation plan in place. There is a range of plans, such as the Environment Agency’s salmon five-point plan, but these have not led to any meaningful action in terms of the broad threats in our rivers and coastal waters.

Amendment 241 aims to create a new designation of protection for chalk streams. This analysis has been prepared with the assistance of experts from the Angling Trust and the Catchment Based Approach—CaBA—a restoration group under the chairmanship of Charles Rangeley-Wilson. It is preparing a report to government on the need for restoration and greater protection of chalk streams in England: the chalk stream restoration strategy. This group, made up of representatives from water companies, conservation NGOs and statutory agencies, including Natural England and the Environment Agency, will publish the chalk stream restoration strategy in September. The report will make a series of recommendations, looking at the three elements that make up action to restore our chalk streams to a near-natural state: action to reduce and mitigate the impact of overabstraction, to reduce pollution and improve water quality, and to restore the habitats and ecological functioning of chalk streams. The report is currently out for public consultation.

The first recommendation of the report is supported by all the companies and agencies involved in the report’s production and from stakeholders’ responses. This recommendation is for

“an overarching protection and priority status for chalk streams and their catchments to give them a distinct identity and to drive investment in water-resources infrastructure, water treatment and catchment-scale restoration”.

Currently, few chalk streams have protected site status. We have drivers, such as priority habitats status and the water framework directive but, thus far, these have failed to deliver enough improvements for chalk streams, principally because they lack statutory drivers for investment. Stakeholders are united in the view that there is a clear need for a status mechanism via designation, which can add impetus and drive investment across multiple policy levers. These include water company price review processes; ELMS local nature recovery and landscape recovery; local nature recovery strategies; biodiversity net gain; and protection through the planning process. A new designation should deliver an integrated approach to the protection of the chalk stream channel, its floodplain, surrounding catchment and aquifer, leading to nature and biodiversity recovery at the landscape level.

This amendment would require Natural England, along with Defra and the EA, to explore the appropriate mechanism for introducing a new category of protections, which may include the adaptation of application of an existing mechanism to protect chalk streams. In doing so it would consider including a statutory biodiversity target for chalk stream catchments in the Bill that would elevate the status of all chalk streams and provide long-term certainty about government ambition and commitment to protection and restoration. It would also consider a new form of designation or statutory protection for all chalk streams through a Green Paper on habitats regulation, and a stronger policy steer for chalk streams, for example through the ministerial guidance on river basin management plans and the strategic priorities statement to Ofwat.

Such a status for chalk streams would drive the investment and resources that have been severely lacking—not only for chalk streams, but, as the first report of 2020-21 from the Environment Audit Committee in the other place, Biodiversity in the UK: Boom or Bust, made clear, for the protection and advancement of biodiversity more broadly.

These are not exclusively chalk stream measures. Many other types of river and stream are also in great need of investment. An integrated approach to restoring all types of habitat and associated species through restoration of natural ecosystem function—particularly natural catchment function—will help to deliver multiple biodiversity benefits, alongside a wealth of natural capital associated with restored aquifer recharge, tackling pollution at source and natural flood management, to quote Natural England in 2018.

Nevertheless, the draft report argues that the global rarity of English chalk streams provides a potent justification for singling out this river type, among others. There are other justifications. One is the fact that chalk streams are under particular stress because they flow through a highly developed landscape. They have been particularly stressed by historic management and have distinct biodiversity, cultural and heritage value. For hydrological reasons, they are less capable of self-repair than higher-energy rivers.

There is also a common misconception that chalk streams exist only in the wealthier home counties of Hampshire and Berkshire. In fact, chalk streams are distributed from west Dorset to north-east Yorkshire, and many flow through less affluent parts of our landscape, and through numerous towns and cities, as well as the rural idylls most frequently depicted.

For example, the Eastleigh Angling Society has more than 850 members. Eastleigh, a constituency that I had the privilege to represent, owes its origins to railway development and manufacture, together with other heavy industry outlets. Yet the River Itchen flows through it. There are also several urban chalk streams, including the Wandle and Cray in Greater London. So I ask the Government to support these proposals for the designation of chalk streams. I beg to move.

[Lord Krebs (CB)]

My Lords, it is a great pleasure to follow the noble Lord, Lord Chidgey, and his eloquent advocacy for chalk streams. I will speak primarily to Amendment 235, in my name and those of the noble Lord, Lord Randall of Uxbridge, and the noble Baronesses, Lady Parminter and Lady Jones of Whitchurch. The aim of our amendment is to ensure that the primary purpose of species conservation strategies is to support the recovery of nature rather than to facilitate development.

At first sight, Clause 102 looks very good. It requires Natural England to publish a strategy for improving the conservation status of any species. It must do this for a “strategy area”, which could be as large as the whole of England. The strategy has to spell out which habitat features are important for the species in question and how they may be improved. Natural England must also give an opinion on any consents or approvals that could adversely affect the conservation status of a species, as well as measures that could be taken to compensate for any adverse effects. Planning authorities must co-operate with Natural England in preparing and implementing any conservation strategy, and “have regard to” the strategy.

--- Later in debate ---

Moved by

[Lord Krebs]

255: Clause 105, page 106, line 7, leave out “instead of” and insert “in addition to”
Member’s explanatory statement
This amendment would allow the Conservation of Habitats and Species Regulations 2017 to be amended to further new objectives in addition to existing objectives, rather than in place of existing objectives.

[Lord Krebs (CB)]

My Lords, I will speak to Amendments 255 and 256 in my name, together with those of the noble Lord, Lord Randall of Uxbridge, and the noble Baronesses, Lady Parminter and Lady Jones of Whitchurch; Amendment 257AA in my name and that of the noble Baroness, Lady Bennett of Manor Castle; and the proposition that Clause 106 do not stand part the Bill, in my name and those of the noble Lord, Lord Randall of Uxbridge, and the noble Baronesses, Lady Parminter and Lady Jones of Whitchurch.

Clauses 105 and 106 were added to the Bill by the Government two months ago without any consultation. These two clauses have important potential adverse effects that these amendments seek to rectify. First, they threaten to weaken the protection of our most valuable conservation habitats and species. Secondly, they confer considerable discretionary powers on the Secretary of State to change the rules governing environmental protection.

In order to fix ideas, I will first explain what these special sites and species are. They include more than 200 special areas of conservation protected under the habitats regulations, such as the north Northumberland coast, the North Yorkshire Moors and Ashdown Forest. They include wetland sites, such as the Humber Estuary, portions of the Essex Marshes, the Isles of Scilly and the Exe Estuary, that have been designated under the Ramsar Convention. Last but not least, they include the more than 80 English special protection areas classified under the Wildlife and Countryside Act 1981 and subsequent legislation, primarily for the protection of bird species. Between them, these three categories protect our greatest natural assets. They protect many rare species, such as the lady’s slipper orchid, the marsh fritillary, the bottlenose dolphin and the lesser horseshoe bat.

Currently, the regulations require public authorities, including the Secretary of State, to comply with the birds and habitats directives, which were the legal source of the habitats regulations. But Clause 105 gives the Secretary of State powers to swap this duty to comply with the birds and habitats directives with a requirement to comply with the new objectives set out in the Environment Bill; in other words, it changes the obligation to protect our most precious conservation sites and our most endangered species.

The Minister will no doubt say there is nothing to worry about and that the Government have no intention of weakening the protection of these sites and species. He may point to the fact that Clause 105 has safeguards built in, such as the requirement in subsection (7) that the Secretary of State must be

“satisfied that the regulations do not reduce the level of environmental protection provided by the Habitats Regulations.”

He may also say that Clause 105(9) requires the Secretary of State to

“consult such persons as the Secretary of State considers appropriate”,

although we should note that this is a rather vague commitment; we do not know who the “persons” are.

The Minister may also argue that the habitats regulations are overly bureaucratic and that Natural England, given the swingeing cuts to its budget to which I referred in an earlier debate, will not have the capacity to deal with both the habitats regulations and the new requirements introduced by the Bill. However—and this is the central point—there is a key distinction between the requirements of the Bill and those of the habitats regulations.

The targets in the Bill are all about improving our natural environment as a whole. In contrast, the habitats regulations and related regulations are all about protecting individual sites, populations and sometimes even individual specimens; in other words, the two forms of protection are complementary and are not alternatives. Amendments 255 and 256 would speak to this complementarity by ensuring that the current protections for particular sites and species remain in place by replacing “instead of” with “in addition to”. The amendments restrict the power of the Secretary of State to sweep away existing protections while still allowing the law to continue to evolve and cater for domestic conservation priorities.

Amendment 257AA would add an additional layer of protection by requiring the Secretary of State to make changes only if they were compatible with five international conventions. It would also replace the vague commitment to consult persons who are considered appropriate by the Secretary of State with a specific commitment to consult experts, including the statutory bodies: Natural England, the Joint Nature Conservation Committee and the office for environmental protection. It would also ensure that there is parliamentary scrutiny of any changes.

If the Secretary of State really means to follow Clause 105(7), these proposed amendments should simply underpin the intended outcome. If, however, the Government object to the amendments, one has a right to ask why. As a start, I ask the Minister a simple question: can he confirm that the statutory bodies I have mentioned would be consulted by the Secretary of State before any regulations were changed?

Finally, Clause 106 gives the Secretary of State power to amend Part 6 of the habitats regulations in almost any way. This part of the regulations deals with development projects. It includes rules to prevent harm to protected sites except for reasons of overriding public interest.

The habitats regulations do not stop development, but they do ensure that projects are properly assessed and that effective mitigation and compensation are in place. Projects such as the Thames Basin Heaths Partnership have shown how the habitats regulations ensure that development takes place in a way that is compatible with nature, helping to protect the remains of the UK’s vanishing heathlands while still allowing the building of many new homes. Successive reviews have found the regulations to be proportionate and effective, giving certainty to developers and environmental groups alike.

Time and again in the debates on the Bill we have referred to the conflict between conserving nature and allowing development. Time and again, we have heard that the Bill, in many ways, appears to tip the balance in favour of development and against nature. Some might even be driven to argue that the Bill is designed to protect nature provided that this does not interfere with other priorities, housebuilding in particular.

The Minister may argue, as with Clause 105, that safeguards are built in. Under Clause 106, the Secretary of State must be satisfied that protections provided by the habitats regulations are not reduced and must explain the reasoning to Parliament. But this is an entirely subjective test, left to the opinion of the Minister, rather than an effective legal safeguard. Clause 106 requires the Secretary of State only to have regard to the importance of conservation and biodiversity. It does not require the Secretary of State to consult with relevant experts, only with such persons as are considered appropriate.

At this stage, we have had no indication at all about how the powers would actually be used or what problems with the habitats regulations the Government may be seeking to address. Could the Minister give us some examples of these problems?

In my view, Clause 106 could be used to allow the Government to sacrifice our natural environment on the altar of development, sidestepping protections provided by the habitats regulations. If the Minister says, “Don’t worry, we will look after nature”, the best way to convince us of this would be to delete this clause from the Bill. I beg to move.

[The Duke of Montrose (Con) [V]]

My Lords, I will speak to my Amendments 257A, 257B and 257C. I thank the noble Earl, Lord Devon, for adding his name to them. It is a pleasure to follow the noble Lord, Lord Krebs, so that we can debate whether the Government can be trusted to guard environmental policy and how much. In seeking to move that Clause 106 not stand part, in spite of its emphasis on conservation and biodiversity, it appears the noble Lord, Lord Krebs, would not like the Secretary of State to have any room to manoeuvre on the proposals presently part of Part 6. I declare my interests as in the register but also particularly as a livestock farmer in a national park and a member of NFU Scotland.

The Government have already passed one amendment to the wording of the habitats regulations that we were operating while we were in the EU, but it was all done so rapidly that it is not altogether surprising that they have a clause in the Bill that would allow them to modify things once the rural environment has settled down. This group of amendments is all about how far they should be able to do so as the proposal unfolds.

Noble Lords will be well versed in the Government’s 25-year environment plan, which is intended to promote a fairer society and social justice, among other things. It was published in May 2019 and outlines their proposals but still lacks many of the mechanisms they hope to be able to use to achieve this, so it remains quite difficult to predict the outcomes.

The purpose of my Amendment 257C is to remedy the fact that in neither the 25-year plan nor this piece of legislation is there a direction to the Government to consider social and economic impacts and give them due regard.

--- Later in debate ---

[Lord Goldsmith of Richmond Park (Con)]

I apologise to the noble Duke if I did not answer all his questions. I will scan Hansard and write to him to fill in any gaps that I left.

[Lord Krebs (CB)]

I thank all Peers for their contributions to this very interesting and well-informed debate, and I thank the Minister for his reply. I listened very carefully to what he said, and he certainly made some encouraging noises. He reiterated that the Government wish to ensure that we do not reduce existing protections and that we want to create a more nature-rich Britain. I understood, I hope correctly, that there will be some Green Paper consultation on changes to the habitats regulations and that, in making any changes, the Secretary of State will consult the office for environmental protection. The Minister did not mention the other bodies that I listed—Natural England and the Joint Nature Conservation Committee—but I hope that the Secretary of State will also consult them. In response to the noble Baroness, Lady Parminter, he also confirmed that there would be some form of impact assessment related to any proposed changes.

In spite of that, having listened to what the noble Baroness, Lady of Young of Old Scone, just said, I think that a number of us are not totally convinced and wonder why, if the Government’s intentions are so genuinely for nature, they are not prepared to make some relatively modest changes to Clause 105 and, possibly, if not remove Clause 106, certainly change its wording to give us in the Bill the reassurance that the Minister is prepared to give us at the Dispatch Box.

I will also comment on a few points that were made by various contributors to the debate. Many Peers, including the noble Duke, the Duke of Montrose, my noble friend Lord Devon, the noble Baronesses, Lady McIntosh of Pickering and Lady Hayman of Ullock, and the noble Lord, Lord Cormack, spoke about the balance between the needs of nature and the needs of people. None of us doubts that there is a balance to be struck, and we do not know exactly what that balance is. But what we do know, without any question—I do not think anybody in this Chamber or elsewhere could deny it—is that, in the past, the balance has been in favour of human exploitation, wealth and economy, and against nature. Otherwise, if we have not got it wrong in the past, why are we living in one of the most nature-depleted countries in the world? Whatever balance we seek, it must be a balance where the needle shifts from the past towards a position on the dial where nature is given higher priority. That is what I and many other Peers who have spoken in this debate and previous debates in Committee firmly believe. I think the Minister shares that belief.

The second point is about the combination of trust, consultation and non-regression. My noble friend Lady Boycott gave a compelling example of why we should not take things on trust—why we have to look at what is happening on the ground rather than honeyed words that we might hear. The noble Baroness, Lady Bennett of Manor Castle, also referred to the Government’s commitment to non-regression, which the Minister did not actually repeat but I think he implied. It is not that we do not trust the Minister, but trust is something that has to be borne by future generations of Governments and many of us would like to see some tweaking of the Bill to underpin that trust.

The final point that came up in the debate, which the noble Baroness, Lady Young of Old Scone, mentioned, was the question of whether this is really all about cutting red tape. The noble Baroness, Lady Neville-Rolfe, gave us the impression that, in her view, there is a need to cut excessive bureaucracy that we have inherited from the European Union.

I will take away and reflect on what the Minister has said, but I end with one final comment, picking up on something that the noble Baroness, Lady Parminter, said, about the biodiversity metric. Yesterday, I read a very powerful criticism of the biodiversity metric by Professor Katherine Willis, a member of the Natural Capital Committee until it was disbanded. She argues that the metric, as currently developed by Defra and Natural England, is absolutely not fit for purpose. Among the many other meetings that he is now committing himself to, is the Minister prepared to meet me, Professor Willis and perhaps some other interested Members of this House to review these criticisms of the biodiversity metric and, perhaps at the same time, to discuss any changes in wording to Clauses 105 and 106? In the meantime, I beg leave to withdraw.

Amendment 255 withdrawn.

Environment Bill

Lord Krebs Excerpts

Report stage
Monday 6th September 2021 Lords Chamber

[Lord Deben (Con)]

I hope that your Lordships will remember the words of the Pope in Laudato Si’, when he said that climate change was the symptom of what we had done to the world. That brings together bio- diversity, imposed poverty, the lack of fertility in our soil, modern slavery and a whole range of other things. Climate change is the planet crying out for the elimination of its disease.

I was not present for his speech but I read carefully what my noble friend said about his commitment to both these things. I hope that, when he comes to answer this debate, he realises that it is extremely difficult for us in the Climate Change Committee to explain to people why biodiversity is part of the answer—putting that right is just as important as a range of other things, and we cannot divorce them from each other. It is difficult, because we have already started doing that, making climate change one sort of thing and these other things different from it. I hope that the Government will understand why this amendment has been put down and why it is important to connect these things. If I have a difficulty, it is that a lot of other things ought to be connected as well, but these two are particularly important this year, given the nature of international negotiations in this area.

I hope also that my noble friend will think to himself a very simple thing: if the Government will not accept the amendment or rewrite the Bill—my noble friend Lord Caithness may be right; I am not arguing in detail about the particular amendment—it is perfectly possible for them to come forward and make a statement in the Bill which makes it clear that the biodiversity and climate emergencies are intimately and intricately connected. I hope my noble friend will realise that, if he cannot say it, he will be showing that the Government are not prepared to say it. That would be really worrying. The reason the Government have to say it is that there is a fundament problem with government: it has a series of silos, and if we are not careful these big issues get caught up in some ministries and not others. Unless we make it clear that this should be a driving force in, say, the Department for Digital, Culture, Media and Sport as much as in the Department for Education, Defra or BEIS, we will not win this battle.

I hope my noble friend will recognise that the House is asking for a very simple statement. If it is refused, I really would not blame people outside for questioning the commitment of the Government as a whole to these two essential parts of the same problem. I look to him if not to accept these amendments then to at least tell the House that, at Third Reading, he will introduce an amendment that will assert publicly the Government’s commitment to these being urgent, necessary issues that deserve the title that we have asked for. I hope he is able to say that; if he is not, it will send the wrong signal, at a time when we should be united in sending the right signals, so that in all discussions people will know precisely where Britain stands.

[Lord Krebs (CB)]

My Lords, in supporting the amendment from the noble Lord, Lord Teverson, I draw attention to a particular feature that has been mentioned but perhaps could be made more explicit. It is a feature of both the climate emergency and the biodiversity emergency: the discontinuities that will arise as a result of incremental change. My noble friend Lady Boycott alluded to this in talking about the rivets in an aeroplane: it does not matter, perhaps, if one, two or three rivets fall out, but when more than a critical number fall off there is a discontinuity and the plane falls out of the sky. This is true, as we know from the IPCC and others, of the climate emergency. We hear over and over of the notion of dangerous climate change, whereby if we exceed a certain boundary then we will tip into a new world in which life becomes intolerable and many regions of the planet are uninhabitable for the human species. That is equally true of the biodiversity emergency.

I am an academic ecologist, and so I will refer back to the scientific literature. Back in 1969, an American ecologist, Robert T Paine of the University of Washington, drew attention to the notion of keystone species. He was studying a species of starfish that lives in the intertidal zone of the north-western United States—Washington state. If this species of starfish disappears then the whole ecosystem flips to a new state, because the starfish is the keystone species that maintains the equilibrium of the intertidal ecosystem. The same will be true in many other situations.

It is not just the number of rivets that fall out of the plane that is important; it is particular, key rivets. The sad thing is that, if we lose some of these keystone species, we will be among the ones that suffer, because we will suddenly find that the systems we rely on to produce food, purify our water and provide other ecosystem services will simply not exist any more. A genuine emergency is created by crossing these thresholds: once we have crossed them, it will be too late.

[The Archbishop of York]

My Lords, in the Book of Common Prayer, the Lord’s Prayer says:

“Our Father in heaven,

hallowed be your name,

your kingdom come,

your will be done,

in earth as in heaven.”

I repeat, “in earth”. It was not the work of some liberal conspiracy in the Church or the Liturgical Commission but, somewhere in the last 300 or 400 years in the popular saying of the Lord’s Prayer, it somehow changed from “in earth” to “on earth”. This tiny change encompasses for me all that is wrong in our relationship with the earth of which we are a part. We used to understand that we live in it, we are part of it, we depend on it and that, as good stewards of the earth, the earth depends on us. Then, somehow, we decided that we did not live in it any more but on it; it was ours and we could do with it as we wanted.

Therein lies the whole challenge to the human race. What I want to hear from the Government on this crucial amendment is a clear signal that we have recognised—as a human race, as a nation and as the Government of this land—that there is an emergency, and that what is happening to our climate and to biodiversity is completely connected. At the same time there must be recognition of the terrible responsibility that we bear for having imagined that we lived on the earth rather than in it. By giving that signal, everything else could follow.

--- Later in debate ---

[Lord Krebs (CB)]

I thank the Minister very much for allowing me to intervene briefly. I want to wind back a few moments in his response to this debate, in which he said, as I heard it, that we will not be able to achieve the biodiversity target without improving soil health. I want to clarify what was meant by that. Does it mean that, in the indicator species that will be part of the biodiversity target and halting species decline—the billion bacteria to which my noble friend Lord Cameron of Dillington referred, as well as the tens of thousands of protozoa and fungi in a single teaspoon of soil—they will be part of the species abundance target and therefore soil health will be folded into that objective?

[Lord Goldsmith of Richmond Park (Con)]

I thank the noble Lord for his intervention. We will talk in detail about the target shortly—perhaps even next—but my point is less about the individual fungi or bacteria; it is that you cannot deliver a reversal of our catastrophic biodiversity loss without tackling ecosystems and, as the noble Baroness, Lady Bennett, make plain in her speech, soil is the basis of so much of our biodiversity and ecosystems, so it is logical that you cannot do one without the other—and likewise with net zero, for all the reasons that my noble friend Lord Deben pointed out.

So, as I have outlined, we are very much on the case. We are developing a metric and prioritising soil health in numerous ways, through this Bill but also other actions. The amendment would undoubtedly pre-empt the process of developing that metric and, for that reason, we cannot accept it—but, with the assurances I gave, I hope that the noble Baroness can be persuaded to withdraw her amendment.

Environment Bill

Lord Krebs Excerpts

Report stage
Wednesday 8th September 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 all noble Lords for their contributions to this debate. Beginning with Amendment 11, moved by the noble Baroness, Lady Brown of Cambridge, the Bill’s robust statutory cycle of monitoring, annual reporting and five-yearly reviews, combined with the OEP and parliamentary scrutiny, ensures that meeting interim targets is taken seriously, without the need for them to be legally binding. We discussed this in detail in Committee, but I would like to outline the Government’s position briefly once more.

The OEP will scrutinise the Government’s progress on targets, including those interim targets, and it can make recommendations on how to improve progress, to which the Government have a duty to respond. It would be both unnecessary and detrimental to our targets framework and our environmental ambitions to introduce legally binding interim targets, as the approach risks undermining the long-term nature of the targets framework, which we have designed to look beyond the political cycle of any one Government and to avoid action solely focused on short-term wins. As I mentioned in Committee, it is undoubtedly a natural temptation for any and every Government working to legally binding five-year targets to set eye-catching, short-term measures in their manifesto, even if those are not necessarily the most effective measures for meeting the longer-term targets.

However, everything we know about the complexity of the environmental targets—indeed, everything we know about natural systems—shows that they transcend any one Administration or five-year period. We are talking about living, non-linear systems, where there will be plenty of measures whose effects will take many years to bear out. For example, for certain habitats, such as peat bogs, native woodlands and elements of the marine environment, significant change is very unlikely to occur within a five-year period, no matter what we do now. We would not want to have to deprioritise key aspects of the environment with longer recovery times to meet a legally binding target in five years.

A number of speakers have made comparisons to the carbon—

[Lord Krebs (CB)]

I thank the Minister for allowing me to interject briefly. He makes the point that restoring and maintaining natural systems is a long-term process. I would agree with that, but does he not also accept that a key element of meeting the targets is to build resilience of natural systems—that is, their ability to withstand shocks and to recover from events such as extreme weather or infectious disease outbreaks? One can tell, from decades of ecological research, at an early stage whether the right steps are being taken to build the resilience of natural ecosystems. Therefore, that could be identified as a shorter-term target to achieve the long-term aims.

[Lord Goldsmith of Richmond Park (Con)]

I agree with the noble Lord; building resilience into our natural environment—into the natural systems on which, ultimately, we depend—is clearly a priority, and I think that is reflected throughout the Bill. It is certainly reflected in our soon to be newly introduced 2030 biodiversity target. But I do not think that takes us away from the fact that, if we are measuring progress on the basis of a longer-term plan, you would end up in some cases with a very dramatic hockey stick, which would be difficult for a Government to explain in the way that would be necessary in the context of legally binding targets.

--- Later in debate ---

[Baroness Parminter (LD)]

My Lords, I thank the noble Baroness for moving the amendment in the name of the noble Lord, Lord Bird. I support the sentiments and the important issues that it raises and thank her for her remarks and her support for my Amendment 20.

The point of Amendment 20 is to help the Government’s policy statement on the environmental principles to put environmental protection at the heart of government decision-making. Currently, the principles ask departmental Ministers to consider the least environmentally damaging option when they are looking at a range of policy options. However, not all Ministers are obliged to take that policy statement into account. The MoD and the Treasury are exempted because defence and tax and spending have a disapplication from the existing statement on environmental principles.

I thank the Minister and his colleagues for meeting me over this summer to discuss this matter, but I am disappointed that we have not made as much progress as I thought we might, and I reserve my right to test the opinion of the House on this matter. As the noble Baroness said, the Minister said in Committee that the reason for this exemption was that it could restrict our response to urgent threats. I accept entirely that the MoD will have urgent threats which it needs to respond to, and I would support the Government coming forward with a targeted disapplication to enable that to happen. However, this is not a targeted disapplication; it is a blanket disapplication for the MoD. The MoD has a third of all the UK’s SSSIs—our most special land for habitats and for environmental protection. In addition, there are all the tenanted farmers, the ancient woodlands and all the land that could deliver so much in terms of natural resource protection on the 2% of the UK land mass which is the military estate in the UK.

There are plenty of examples in pockets of the MoD where it shows that it can marry together environmental protection and the protection of the state. However, unless we change this clause as it stands, I fear that the description in the National Audit Office review in 2020 of environmental protection in the MoD as a Cinderella service will not change. Equally, since then, in March of this year, the Minister Jeremy Quin MP and others launched the MoD’s new climate change and sustainability approach. It says:

“The response to climate change and sustainability in Defence must be led from the top and applied across all areas and at all levels.”


Without this amendment, that cannot be delivered.

As regards the exemption for the Treasury and for tax and spending policy, given the importance of tax policies and departmental budgets to deliver environmental targets when we are looking at managing the land for protecting the environment, it is almost unbelievable that there is that exemption. It means that Ministers will not have to consider environmental matters when they are looking at spending issues such as roads. As the noble Baroness said, the Minister’s response was that the exemption was to allow maximum flexibility. In the Government’s response to the Dasgupta review, which was produced earlier and to which the Government have signed up, they accepted that nature was a macro- economic consideration and supported setting out steps to align national expenditure with climate and environmental goals. Without this amendment, that cannot be delivered.

It is not just me saying that; since we last met in Committee, the office for environmental protection has given its first advice—at the request of the Government—on the draft environmental principles policy statement. I will quote from the chief executive offer of the OEP, which we will come on to in the next group of amendments. Natalie Prosser said that

“there are such important benefits to be reaped should policy-making across all departments embrace and live by these principles.”

That is all departments—not some departments. It would be a very worrying sign if the Government were to refuse that first piece of advice from the OEP.

[Lord Krebs (CB)]

My Lords, it is a great pleasure to follow the noble Baroness, Lady Parminter, and I have put my name to Amendment 20. I will be very brief, because I had a real moment of joy and optimism this morning when I read the latest Defra briefing notes, called Key Facts on the Environmental Principles. I will read out two sentences from this factsheet, which lead me to believe—if these really are facts, as it says —that the Government have changed their mind. First, “Ministers across government”—I emphasise that—“will be legally obliged to consider the principles in all policy development where it impacts the environment”. Secondly, “All government departments” —I emphasise that—“must consider the environmental principles policy statement when developing policy”.

I assume that unless the key facts are not key facts, the Government have indeed accepted Amendment 20, and I very much look forward to the Minister confirming that in his response.

--- Later in debate ---

[Lord Goldsmith of Richmond Park (Con)]

I am pleased to open this group and speak to the amendments I have tabled, which respond to many of the concerns raised by noble Lords in Committee regarding the independence of the OEP. I also notify noble Lords that I outlined in a Written Ministerial Statement yesterday the full range of provisions already in place to ensure the OEP’s independence. I hope that it is a useful reference point for noble Lords and that it offers reassurance on the Government’s commitment to the independence of the OEP.

These amendments will increase parliamentary scrutiny of any guidance that the Secretary of State wishes to issue under Clause 25. They will afford Members in both Houses the opportunity to review and make recommendations regarding the draft guidance, to which the Secretary of State must respond before final guidance can be laid and have effect. This will provide additional parliamentary oversight, not only of any guidance issued by the Government but any issued by future Governments.

For parity, Northern Ireland Ministers have decided also to bring forward amendments to Schedule 3 to give the Northern Ireland Assembly the same opportunity to scrutinise any draft guidance issued relating to the OEP’s Northern Ireland enforcement functions.

As I have said before, the OEP has an unprecedented remit, with the ability to take enforcement action against all public authorities. It is for this reason that the Government feel that a guidance power is necessary to help ensure that the OEP continues to carry out its functions as intended. However, I understand the concern about the use of this power and hope that these amendments go some way to reassuring noble Lords that there will be an additional check on its use.

There is no question that the OEP must be impartial and independent but it should also be accountable to Ministers who are ultimately responsible for its use of public money. Any guidance issued must respect this important balance and I hope that this additional mechanism for parliamentary scrutiny will allay these concerns.

Finally, I thank the noble Baroness, Lady Taylor of Bolton, and the other members of the Constitution Committee for their recommendations on this matter. I beg to move.

[Lord Krebs (CB)]

My Lords, Amendment 24 in this group is in my name and those of the noble Baronesses, Lady Parminter and Lady Jones of Whitchurch, and the noble and learned Lord, Lord Mackay of Clashfern.

In Committee, there was strong support from across the House for my amendment that would have removed the guidance clause from the Bill in order to ensure that the OEP was fully independent. In fact, I do not recall anyone making a coherent case for greater ministerial control over the OEP. I acknowledge and thank the Minister and the Secretary of State for their time in discussing this matter since Committee. I also thank the Secretary of State for his letter to my noble friend Lord Anderson of Ipswich and myself, dated 28 August.

I also acknowledge that the Government have made concessions in their own amendment to Clause 25 and that, furthermore, the importance of the independence of the OEP was reiterated by Minister Pow yesterday in a Written Statement and also by the noble Lord the Minister with the same Written Statement.

So why am I still pressing ahead with my amendment to replace Clause 25? It is simply this: if we must get one thing right in this Bill, it is the office for environmental protection. The OEP is the body that will ensure that the Government’s warm words about the environment are translated into action. The Minister himself could not have been clearer on Monday. When I asked who will hold the Government to account on the target of halting species decline, he replied that it was the office for environmental protection. Even with the government amendment to Clause 25, the OEP is not, in my view, sufficiently independent of Ministers for us to be confident that it will be able to do what is has been set up to do.

--- Later in debate ---

Amendment 22 agreed.

[Lord Krebs (CB)]

I am sorry; I would like to make a few comments about Amendment 24. I thought the agreement was to Amendments 22 and 23.

[The Deputy Speaker (Baroness Fookes) (Con)]

I am just putting the amendment. As far as I am aware, Amendment 22 has passed, so we now come to Amendment 23.

Amendment 23

--- Later in debate ---

Moved by

[Lord Krebs]

24: Clause 25, leave out Clause 25 and insert the following new Clause—
“OEP independence
(1) 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.(2) At the start of each period of multi-annual funding and no later than 1 April 2023, the Secretary of State must lay before Parliament, and publish, a statement setting out the multi-annual budget which they intend to provide to the OEP.(3) The Secretary of State must lay before Parliament, and publish, a statement responding to any request from the OEP for additional funding due to a change in the body’s responsibilities or functions, within three months of that request being received.(4) In making or terminating appointments under paragraph 1 and paragraph 5 of Schedule 1, the Secretary of State must obtain the consent of the Environment, Food and Rural Affairs and Environmental Audit Committees of the House of Commons.”Member’s explanatory statement
This amendment aims to ensure that the OEP is as independent as possible.

[Lord Krebs (CB)]

I apologise for my earlier interjection, out of order. I thank the Minister for his response to my amendment and Amendment 30, in the name of the noble Baroness, Lady Ritchie of Downpatrick. I also thank all noble Lords who have contributed to this short but interesting debate.

I reiterate what I said at the beginning and has been said by a number of other contributors to this debate: if we get it wrong on the office for environmental protection, the whole edifice of the Bill could fall. All the things the Bill attempts to achieve will, in the end, depend on having a strong, independent, powerful office for environmental protection. If we get it wrong, people out there who observe what Parliament is up to and care about the environment will not understand why we failed.

At the moment, the arrangement is rather like having a whistleblower who is told by the boss which areas he or she is not allowed to investigate. That is simply unacceptable. Unfortunately, we seem to be involved in a dialogue of the deaf. We keep on repeating the message, and it is strong and not from one particular party or group in the House—the view is held widely—and the Government, unfortunately, reiterate the same points over and over again. I feel the time has come to test the opinion of the House and I wish to do so.

Environment Bill

Lord Krebs Excerpts

Report stage
Wednesday 15th September 2021 Lords Chamber

Moved by

[Lord Krebs]

99: After Clause 109, insert the following new Clause—
“Habitats Regulations: limits on powers to amend
(1) The Secretary of State may only make regulations under section 108 or 109—(a) for the purposes of—(i) securing compliance with an international environmental obligation, or(ii) contributing to the favourable conservation status of species or habitats or the favourable condition of protected sites; (b) if the regulations do not reduce the level of protection provided by the Habitats Regulations, including protection for protected species, habitats or sites; and(c) following public consultation and consultation with—(i) the Office for Environmental Protection,(ii) Natural England,(iii) the Joint Nature Conservation Committee, and(iv) other relevant expert bodies.”Member’s explanatory statement
This amendment ensures that powers to amend the Habitats Regulations may only be used for the purposes of environmental improvement following consultation. It ensures that the level of environmental protection that must be maintained includes protection for important habitats, sites and species as well as overall environmental protection.

[Lord Krebs (CB)]

My Lords, the amendment is in my name together with those of the noble Baronesses, Lady Parminter, Lady Jones of Whitchurch and Lady Bennett of Manor Castle.

The amendment replaces four amendments that we debated in Committee. It has the same intent as those four amendments: to ensure that the Secretary of State cannot amend the habitats regulations without due process and constraints.

Bearing in mind the admonition we recently heard, let me recap very briefly. The habitats regulations protect our most valuable conservation sites, habitats and species. While these sites account for only a modest proportion of our land and marine area, they certainly punch well above their weight when it comes to protection of species. Unlike the targets in Clause 3, which apply to the country as a whole, the habitats regulations refer to specific places. This is an important distinction.

Clauses 108 and 109 allow the Secretary of State to amend these regulations, and they do not give enough safeguards to ensure that our most valuable habitats will be protected in future. Amendment 99 would provide those safeguards, stating explicitly that any changes to the habitat regulations would not breach any of our international obligations, would contribute to enhancing the conservation of habitat sites and species and would not reduce current levels of protection. It would also require the Government to consult the appropriate statutory expert bodies and other relevant experts. In short, it places in the Bill the commitments that the Government have already made in debate in Committee, when the Minister reassured us on every point.

So what is not to like? The Minister told us that key reasons for Clauses 108 and 109 were contributing to “international obligations” and ensuring

“our protected sites can be restored to good condition”.

This is made clear in Amendment 99. He also told us that the powers in these clauses would be used only to strengthen environmental protection. However, as it stands this would be a test of the Secretary of State being satisfied that protections are not reduced. Although the Minister described this as a “high bar”, it is a subjective judgment. Amendment 99 would replace this subjective test, whereby Ministers mark their own homework, with an objective requirement. The Minister pointed out that the Secretary of State’s judgment could be challenged in the courts, but that seems to me to be setting up a system that would generate money for lawyers and take up large amounts of time with uncertain outcomes. Why not simplify with Amendment 99?

The Minister said that the Government would consult the office for environmental protection before making any changes to the habitats regulations. Amendment 99 extends the consultation requirement to include other relevant bodies. He also referred to a review led by the noble Lord, Lord Benyon, but did not tell us who was consulted in this review and what its impact will be. Perhaps he can expand on this in his reply.

As I have already mentioned, a crucial difference between the habitats regulations and the Clause 3 commitments is that the habitats regulations protect particular sites, habitats and species, while the Clause 3 targets do not. The Minister told us that Clause 108 is

“designed to allow requirements to specify … protections for habitats and species”.—[Official Report, 12/7/2021; cols. 1620-1.]

However, this does not guarantee those protections. The Minister also told us in Committee that the habitats regulations had not worked. I am not sure to which studies he is referring, but the evidence, as I understand it, from peer-reviewed literature, is that protected species fare better in countries where protection of the kind provided by the habitats regulations is most extensive and long-standing. This is not to say that things could not be improved. However, the Minister did not give us specific examples of how the powers of Clauses 108 and 109 would lead to an improvement. In fact, we heard from the noble Baroness, Lady Neville-Rolfe, that this was a post-Brexit opportunity to cut red tape and bureaucracy—hardly a reassuring message.

In summary, I have not heard any convincing arguments against the habitats regulations being maintained, and Amendment 99 will ensure that any changes in future will strengthen rather than weaken them. I very much look forward to what the Minister has to say in his reply but, as things stand, I would wish to test the opinion of the House on this crucial amendment. I beg to move.

[Baroness Bennett of Manor Castle (GP)]

My Lords, your Lordships’ House will hear from me a great deal later on, so I will be very brief in this contribution. I have attached my name to this amendment in the name of the noble Lord, Lord Krebs, which of course has full cross-party and non-party backing. The noble Lord has set out an overwhelmingly powerful case for why we should have this amendment.

I make two comments. We were promised non-regression with Brexit, and this would restore some of the protections that we lost with Brexit and, more than non-regression, we were promised improvements. This is simply standing still, so the Government really must commit to this amendment.

--- Later in debate ---

[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 during this debate. The Bill takes the world-leading step of requiring a new, historic and legally binding target to halt species decline by 2030. The powers in Clauses 108 and 109 form an integral part of our strategy to achieve this.

The first of those powers enables the amendment to Regulation 9 of the Conservation of Habitats and Species Regulations 2017. Currently, that regulation requires Ministers and public authorities to comply with or have regard to the requirements of the habitats and wild birds directives. However, these requirements are not explicitly set out anywhere. This has provided scope for differing interpretations and disagreement, as well as potential for legal challenge.

Instead of spending time and taxpayers’ money on battles in the courtroom, we want to try to focus on ensuring that the protection of our designated sites and species is based on robust science and technical expertise. The Government will publish a Green Paper later this year, as the noble Baroness, Lady Jones, acknowledged, which will set out clearly, plainly and transparently our view of the current requirements of Regulation 9 and remove that uncertainty. We will consult on and agree the conservation requirements necessary to meet our biodiversity targets and improve the natural environment. This will support our aim to focus on the scientific evidence as well as our national priorities for nature restoration.

The second power concerns the amendment to Part 6 of the regulations, which enables us to review the current habitats regulations assessment process. My noble friend Lord Benyon is chairing a small working group that is gathering information from experts regarding our current HRA process, to inform any future decisions on the use of these powers. The group is consulting a wide range of experts with direct experience of HRA, including the competent authorities, statutory advisers, environmental NGOs, developers, town and country planners and land managers. The group includes Minister Pow, Tony Juniper—he is chair of Natural England—and Christopher Katkowski QC. It will input options for proposals and questions to the Green Paper, which will then be subject to extensive consultation.

A clearer, quicker and more easily understood process will support environmental protection by focusing on the issues that really matter for protected sites. I am reminded that Lord Justice Sullivan, when the regulations were formulated, recommended that we needed a system that was simple and not too full of hurdles that could end up causing excessive battles in the courtrooms. It feels to me that, in part, that is where things have ended up.

However, I can commit to this House that no changes will be made without extensive consultation and strong parliamentary scrutiny. Consultation will include the office for environmental protection and statutory nature conservation bodies. It will also include key environmental NGOs, farmers and land managers to name a few. Those commitments are reinforced in Clauses 108(5) and 109(3), so that, in making regulations using these powers, Ministers must be satisfied that they do not reduce existing protections. In addition, we have added a specific requirement that Ministers justify to Parliament that any new regulations using these powers meet the test. This is a meaningful scrutiny mechanism with strong safeguards ensuring that we will not reduce the level of environmental protection.

I know some noble Lords are concerned that the changes will undermine the specific protections currently conferred by the habitats and wild birds directives, and I want to be clear that Clause 108(3) allows for requirements or objectives to be specified in relation to the 2030 species target or other long-term biodiversity targets and to improve our natural environment. These requirements and objectives can specify, among other things, how we must protect habitats and species, and at what scale, to ensure we can reverse biodiversity loss.

Additionally, many of the requirements in the directives derive in turn from multilateral environmental agreements, of which the UK is a contracting party and was instrumental in promoting—in particular, the Berne convention. We remain bound by international law and committed to those obligations to contribute to the conservation status of these habitats and species within their natural range and to continue to co-operate internationally to do so. We remain equally bound by and committed to conserving the marine environment under the Ospar convention; migratory species under the Bonn convention; wetlands under the Ramsar Convention; and, more broadly, the Convention on Biological Diversity.

I hope I have gone some way to reassure noble Lords that this power has been tightly drafted, with strong safeguards in place on its use, and that Amendment 99 is therefore not necessary. Climate change and biodiversity loss present huge long-term challenges that literally threaten our future if left unchecked. We need to act now, through this Bill, to halt the decline of species by 2030 and, as noble Lords will know, we will be legally obliged to do so when the Bill becomes an Act, as we hope it will. The habitats regulation assessment is a key mechanism for preventing deterioration of our most valuable habitats. We want to strengthen that protection and investigate ways in which the habitats regulation assessment could support better environmental outcomes. I therefore urge the noble Lord to withdraw his amendment.

[Lord Krebs (CB)]

I thank all noble Lords who have taken part in this short debate and the Minister for his response. I want to make just three points. The first is that, listening carefully to what he said, I reiterate the question that the noble Lord, Lord Deben, put to him: there is nothing that the Government are not already committed to in this amendment, so why not accept it? I have not heard the argument against it. I have heard the argument for it from the Minister.

The second point concerns the Green Paper, which loomed large in the Minister’s response. There seems to be one species that might be protected by the Green Paper: the pig—the pig in the poke. We do not know what is going to be in the Green Paper. We have had a list of names of people who might be consulted, but we do not know what form the consultation has taken.

The third point is that the Minister referred to the need to have a regulatory regime that is quicker, easier and simpler. That rings alarm bells for me. Ease, simplicity and speed are not necessarily merits that one wishes to pursue if one’s aim is to protect the natural environment. I am afraid that although I have heard responses in detail to Amendment 99, I am not convinced that they provide a satisfactory end point, and therefore wish to test the opinion of the House.

Environment Bill

Lord Krebs Excerpts

3rd reading
Wednesday 13th October 2021 Lords Chamber

[Baroness Jones of Moulsecoomb (GP)]

My Lords, I agree with the Minister that this Bill, as it stands now, is ambitious. But the Bill we had originally was a terrible Bill and that is why we so heavily amended it—it is quite unusual to amend a Bill to this extent. I hope that the Minister is going to push very hard, with the Treasury and his colleagues in the Commons, to make sure that they take out very few, if any, of our amendments.

[Lord Krebs (CB)]

I thank the Minister and the Defra officials, who have engaged with me and many other noble Lords very constructively during the passage of this Bill through your Lordships’ House.

I echo the point just made by the noble Baroness, Lady Jones of Moulsecoomb: the amendments that have been passed in this House have significantly improved the quality of the Bill. An important point to note is that the amendments had almost universal support from all groups in your Lordships’ House. They were not party-political points; they were points made by those of us who believe passionately in the protection of the environment, now and in the future, to leave a better environment for our children and grandchildren than we have at the moment.

I hope, therefore, as the noble Baroness, Lady Jones, has said, that the Minister will do his very best with his colleagues to ensure that the majority, if not all, of the amendments survive their consideration in the Commons and that we do not have to start the arguments all over again at ping-pong in a couple of weeks’ time.

[Baroness McIntosh of Pickering (Con)]

My Lords, I congratulate my noble friend the Minister on what was, I think, his first Bill in this House, and my noble friend Lady Bloomfield, as well as the Bill team, who went the extra mile. I particularly pay tribute to my noble friend for the amendments that he brought forward, which is always quite an achievement for a Minister in this place.

I would like to press him a little bit further on reaching a balance, particularly in catchment management and the prevention of combined sewer overflow, an issue to which I am sure we will be returning. We have already seen substantial floods in this country and elsewhere, no doubt due to climate change, and I welcome the provisions of this Bill that will undoubtedly help to reduce that in the future.

I support my noble friend the Duke of Montrose in his comments. I will raise these issues further in the context of the debate on the common frameworks agreement later today.

I want to take the opportunity to congratulate my noble friend the Minister on bringing us to this stage, and to wish the amendments that we have carried a safe passage back to us when the Bill returns to this House from next door.

Environment Bill

Lord Krebs Excerpts

Consideration of Commons amendments
Tuesday 26th October 2021 Lords Chamber

On that basis, I am grateful for what the Minister has offered—a letter of reassurance. I hope that he can see that, again, I am trying to be consensual. If those words are in there, I will be temporarily reassured, but please be mindful: this is not an issue that will go away.

[Lord Krebs (CB)]

My Lords, I rise to speak to Motion F1, which would amend the government Motion F. I also support Motion G1, which we will come to shortly. The issue at stake with my amendment is simply this: does the Bill give the office for environmental protection sufficient independence to allow it to fulfil its function of holding public authorities, including Ministers, to account in relation to breaches of environmental law?

Clause 24 gives the Secretary of State wide-ranging powers to issue guidance to the OEP on the matters listed in Clause 23(6). These include whether a failure to comply with the law is “serious”, how the OEP determines

“whether damage to the … environment or to human health is serious”,

how the OEP exercises its enforcement functions

“in a way that respects the integrity of other statutory regimes”,

how the OEP intends to “avoid … overlap” with relevant ombudsmen and

“how the OEP intends to prioritise cases.”

The Bill also gives the Secretary of State powers to determine the budget of the OEP and to hire and fire the board, including the chair. Many of us feel that this does not add up to creating a truly independent watchdog.

Therefore, on Report, I moved an amendment, with support from across the House, to rewrite Clause 24 in order to ensure that it gave independence to the OEP in its enforcement role and budget. It also gave parliamentary oversight of both the budget and the hiring and firing of board members. This amendment was passed by a majority of 29. The Government proposed an alternative amendment that would have involved more consultation with Parliament but did not remove the guidance powers or change the substance of Clause 24. This amendment is essentially the same as Amendments 31A and 31B that we have in front of us today.

In the other place, on 20 October, my amendment was rejected, in spite of the fact that, according to my reading of Hansard, the speeches that referred to it strongly supported it. In her response, Minister Pow made three points. First, she said that paragraph 17 of Schedule 1 requires the Secretary of State to “have regard to” to the OEP’s independence. But we all know that “have regard to” is a weak requirement.

Secondly, she said that the Secretary of State cannot intervene on “specific … cases”. But by intervening on a category of cases—say, new nuclear power stations—the Secretary of State could, in theory, preclude the OEP from investigating a whole raft of individual cases within that category; for example, if it was advised that it is not a priority.

Thirdly, Minister Pow said:

“The OEP does not have to follow the guidance where it has clear reasons not to do so.”—[Official Report, Commons, 20/10/21; col. 823.]


It is a bit paradoxical to justify the existence of the guidance power by saying that the OEP does not have to take any notice of it. Furthermore, you could argue it would be a brave OEP that ignored the guidance from the individual who has the power to determine its budget and hire and fire the board, including the chair.

I am still not satisfied that the Bill will protect the independence of the OEP without further amendment. This new amendment—my Amendment 31C—is a genuine attempt at compromise, and I hope the Government will recognise this and therefore accept it. Let me briefly summarise. Subsection (1) sets out that the OEP has complete discretion in relation to its enforcement policy and functions and in preparing its budget. This would make it comparable to the Office for Budget Responsibility and the National Audit Office. Subsection (2), importantly, retains the guidance power for the Secretary of State but narrows its focus to certain strategic issues concerned with enforcement, as described in Clause 22(6)(c). Subsection (3) requires the OEP to have due regard to the guidance but allows for circumstances in which it may choose to disregard it. Subsections (4) and (5) refer to consultation and parliamentary scrutiny of the guidance, and subsection (6) involves the relevant parliamentary committees in the hiring and firing of board members.

The long-term success or failure of this Bill will in large part be measured by the effectiveness of the office for environmental protection. All the good intentions of the other parts of the Bill could come to naught without a fully independent watchman. We all had high confidence in and high regard for Dame Glenys Stacey, and for her board. We also have high regard for and confidence in the good intentions of current Defra Ministers. But I believe we have to prepare for the long term and that this amendment is fundamental to protecting the OEP’s independence in the long term.

[Baroness Ritchie of Downpatrick (Lab)]

My Lords, I will be brief, as this issue has been debated thoroughly at previous stages of the Environment Bill. I rise to move my Amendment 75C, under Motion N1, which would replace government Amendments 75A and 75B. This mirrors Amendment 31C, proposed by the noble Lord, Lord Krebs, and would achieve the same outcomes for the OEP’s independence in Northern Ireland as his would for the OEP in England.

My amendment would safeguard the OEP’s independence in the long term by amending the power of DAERA to guide how the OEP will hold Ministers to account on any environmental wrongdoings, to make it more targeted. It would also provide the OEP with complete discretion to undertake its activities in Northern Ireland and establish a role for the Assembly’s AERA Committee in overseeing the appointment of the Northern Ireland member on the OEP’s board. As the noble Lord, Lord Pannick, said on Report:

“If the Government accept that the OEP should have complete discretion, surely a matter of this importance should be in the Bill.”—[Official Report, 18/9/21; col. 886.]


The recent DAERA consultation in Northern Ireland on environmental plans, principles and governance indicated strong support for the establishment of the OEP in Northern Ireland. I am in no doubt that that will be a huge boon for our environmental governance, but unless its independence is enshrined for the long term in this Bill, we will have missed a serious opportunity to ensure that this important new body is protected from future political whims. I say that with great reluctance, but we have to consider the political dynamics that exist in the Northern Ireland Executive and the Northern Ireland Assembly. As the EFRA Committee chair Neil Parish MP said in the other place last week,

“we need to ensure that those offices are independent for all time.”—[Official Report, Commons, 20/10/21; col. 804.]

In summary, I disagree with the Government’s amendments in respect of the OEP in Northern Ireland and the need for it to be independent, and I hope the Minister will change his mind on this issue.

--- Later in debate ---

Moved by

[Lord Krebs]

Leave out from “31” to end and insert “, do disagree with the Commons in their Amendments 31A and 31B, and do propose Amendment 31C in lieu—

31C: Leave out Clause 24 and insert the following new Clause—
“OEP independence
(1) 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.
(2) The Secretary of State may issue guidance to the OEP on the matters listed in section 22(6)(c).
(3) The OEP must have regard to the guidance in preparing its enforcement policy, unless there are material considerations that indicate otherwise.
(4) Before issuing the guidance, the Secretary of State must—
(a) prepare and consult on a draft,
(b) lay the draft before Parliament, and
(c) publish a response to the consultation.
(5) The Secretary of State must publish the guidance when it comes into effect.
(6) In making or terminating appointments under paragraph 1 and paragraph 5 of Schedule 1, the Secretary of State must obtain the consent of the Environment, Food and Rural Affairs and Environmental Audit Committees of the House of Commons.””

Environment Bill

Lord Krebs Excerpts

Consideration of Commons amendments
Tuesday 9th November 2021 Lords Chamber

Moved by

[Lord Krebs]

Leave out from first “do” to end and insert “insist on its disagreement with the Commons in their Amendments 31A and 31B on which the Commons have insisted for their Reason 31D, do not insist on its Amendment 31C in lieu to which the Commons have disagreed for the same Reason, and do propose Amendment 31E in lieu—

31E: Clause 24, page 14, line 30, leave out subsections (1) and (2) and insert—
“(1) The OEP has complete discretion in the carrying out of its functions and in preparing and publishing its budget (but subject to this section).
(2) The Secretary of State may issue guidance to the OEP on the matters listed in section 22(6), but this should not include matters relating to the enforcement of environmental law against the Secretary of State for Environment, Food and Rural Affairs.
(2A) The OEP must have regard to the guidance in preparing its enforcement policy, unless there are material considerations that indicate otherwise.””

--- Later in debate ---

[Lord Krebs (CB)]

My Lords, I thank the Secretary of State, the Minister and the Bill team for the very helpful discussions that I have had with them throughout, and particularly during the last week. In spite of this, here I am with a further amendment, and I feel slightly embarrassed to be pressing yet again on the matter of the independence of the OEP. However, the strength of opinion across this House was clear at the first stage of ping-pong, when my amendment passed with a majority of 51.

The Government clearly have an umbilical attachment to the guidance powers in Clause 22, and my amendment makes a major concession in that it does not seek to remove the guidance power. I expect that there will be some noble Lords who believe that this concedes too much. However, the proposed new subsection (2) in the amendment would introduce a specific constraint on the Secretary of State in issuing guidance, namely that guidance cannot be issued on

“matters relating to the enforcement of environmental law against the Secretary of State”.

The aim of this subsection is to prevent the Secretary of State having a conflict of interest. Without it, he or she could, in effect, mark their own homework.

The proposed subsections (1) and (2A) of my amendment state that, in spite of any guidance, the OEP

“has complete discretion in the carrying out of its functions”,

and that, while it

“must have regard to the guidance”,

the OEP does not have to follow it if

“there are material considerations that indicate otherwise.”

These subsections are designed to ensure that the OEP has the operational independence that we all want, in spite of the guidance power.

I turn to the Minister’s opening speech and quote back two key sentences. The first is:

“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 Defra, given that there would be a conflict of interest.”


The second is:

“the OEP would be expected to have regard to any guidance issued, but it retains the ability and discretion to make its own decisions and is not bound to act in accordance with the guidance where it has clear reasons not to do so.”

Although the wording is slightly different from my amendment, the implications of the points made in the Minister’s speech are more or less identical. I hope that, later in this debate, the Minister will confirm that my interpretation is indeed correct. The only piece that is left out is the OEP setting its own budget, but there are some other safeguards in other parts of the Bill.

I consider it a great pity that the Government were not prepared to accept my amendment, as the Minister’s speech implies that its intent has indeed been accepted. However, as the Minister stated at the start of his speech, ministerial statements in Hansard could be used by the courts in future as an aid to statutory interpretation. I look to the lawyers, because it is well above my pay grade to judge the value of that statement and, therefore, whether what we have heard is a sufficiently robust protection for the OEP’s independence.

The Minister also made three other important points that respond to earlier concerns expressed about the guidance power. First, the guidance power could not be used to preclude the OEP from investigating a broad category of cases. The example I used in an earlier debate was new nuclear power stations. Secondly, it is up to the OEP to decide whether cases have national implications. For instance, a case that has specific and local implications, such as the destruction of a unique habitat, could also be of national significance. Thirdly, the Secretary of State will not issue guidance to the OEP before the initial setup and before the OEP has had a chance to develop its own enforcement policy.

I thank the Minister for his speech. I believe that we have converged on a way forward that protects the operational independence of the OEP. The solution may not be perfect, but it gives me some reassurance on this absolutely central plank of the Bill. I beg to move.

[Lord Cameron of Dillington (CB)]

My Lords, it appears that there has been some sort of rapprochement—albeit, I suspect, reluctant. On the one hand are us, from all sides of the House of Lords, who wish to see a strong and independent OEP; on the other side is the current Defra team, which still, I get the impression, wishes to guide its activities as far as is politically possible. It would appear that we are gradually getting closer together. Sadly, however, we are not seeing a total volte-face by the Government, as we have over sewage and CSOs—or, for that matter, on breaches of parliamentary rules on lobbying.

Unfortunately, the independence of the OEP, a body that has yet to exist, is a concept too esoteric for the public to even know about, let alone to get hot under the collar about. If they knew about it, bearing in mind the Government’s behaviour in recent weeks, I should have thought that they would be concerned that future Secretaries of State could be exercising guidance over this body, whose primary function, let us face it, is to hold the Government, its Ministers and their quangos to account.

As my noble friend Lord Krebs said, his Motion A1 is very much in line with what my good friend Rebecca Pow, the Minister in the other place, has already said on the Floor of that House, as echoed by the Minister in this House today. It would have been good to get it on the face of the Bill to make the sentiment more certain and, above all, more durable, because that is really what matters. Bearing in mind that we are unlikely to get another environment Bill for some decades, I for one would have preferred us to move beyond just the commitments of this excellent team of Ministers and to a properly constituted, independent OEP that will stand the test of time. However, although I strongly support the amendment in the name of my noble friend Lord Krebs, I recognise that the rapprochement we have achieved is now probably as far as we are going to get.

--- Later in debate ---

[Lord Goldsmith of Richmond Park]

I am so sorry—I have just transferred that brilliant joke to another party. It may have been a brilliant joke but there was some truth in it—many a truth is told in jest, as someone said. The noble Baroness, Lady Hayman, makes a very good point, but I genuinely believe that the work of this House has removed much of the pong, and the ping-pong has, as a result, improved the Bill considerably. I genuinely thank her and others across the aisle for the work that they put into this.

I equally thank my exceptional private office staff, who have worked above and beyond the call of duty. This has been a very long process; it is one of the biggest Bills we have had to deal with. They have been working—in some cases—around the clock and I am very grateful to them and of course to the Bill team, who have been absolutely superb and extraordinarily patient, not just with colleagues in this House but with Ministers. I really appreciate their efforts and I look forward—as I know many in this House do—to the Bill continuing the crucial work that we have already begun to restore our appallingly depleted natural environment, improve the quality of our air and water, and end the scourge of plastic waste pollution. I commend this Motion to the House.

[Lord Krebs (CB)]

My Lords, I thank all those who have taken part in this debate and will reiterate something that was said at earlier stages of the Bill. The amendments I have been involved in, and many of the others, have been genuinely across all groups, and it has been a particular pleasure for me to work not only with the noble Baronesses, Lady Jones of Whitchurch and Lady Parminter, but with colleagues on the Conservative Benches: the noble and learned Lord, Lord Mackay of Clashfern, the noble Lord, Lord Duncan of Springbank and others. The concerns we have expressed are not partisan: they are genuine concerns about wanting to improve the Bill and protect the environment for our grandchildren and generations to come.

I also thank the Minister. In his reply, he did indeed utter the words I was hoping he would: namely, that the Government’s intention is to protect the operational independence of the OEP. I am very grateful to him for confirming that.

In concluding, I think that the noble Lord, Lord Cormack, said it far more eloquently and succinctly than I could. We have worked hard to try to improve the Bill and we have made significant gains, but there comes a point at which we say, “Enough is enough. We have done the best we can. We have brought our experience and expertise to bear on the Bill and we think we have got about as far as we can. It may not be perfect, but it is better than it was when we started.” On that basis, I beg leave to withdraw Motion A1.

Motion A1 (as an amendment to Motion A) withdrawn.