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.

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[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.

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[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.

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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.

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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.

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[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.