Environment Bill

Lord Mackay of Clashfern Excerpts

Committee stage
Wednesday 30th June 2021 Lords Chamber

[Lord Mackay of Clashfern (Con)]

My Lords, I support the amendments and support in detail all that has been said by noble Lords, including the noble and learned Lord, Lord Thomas. I want to ask a rather fundamental question. The environmental review can be taken on only where the OEP considers that, on the balance of probability,

“the authority has failed to comply with environmental law, and … it considers that the failure”

is “serious.” That is the start: a failure

“to comply with environmental law.”

Subsection (6) states:

“If the court finds that the authority has failed to comply with environmental law, it must make a statement to that effect (a ‘statement of non-compliance’).”


That is to say that the court has held that the authority in question

“has failed to comply with environmental law”.

It goes on to state:

“A statement of non-compliance does not affect the validity of the conduct in respect of which it is given.”


What does that mean? That means that the conduct in question cannot be a breach of the law. It is a failure of environmental law, yet it is not a breach of the law. Is that another way of saying that environmental law is not a law at all, and that planning law must prevail? Is that really what this is saying, or can my noble friend explain to me how you can have a law which has been breached yet the conduct is not regarded as improper?

It is a simple question that supports all these amendments, if answered properly. There is an underlying feeling that environmental law is to be a grade below some other laws so that, although you fail to comply with it, you can still be all right. That does not accord with our understanding of law—certainly not mine for a considerable period. I do not see how it can work that you can have a piece of legislation that describes something as law—environmental law—yet it is not law that, where you breach it, renders your conduct wrong.

[Lord Cormack (Con)]

My Lords, it is a delight to follow my noble and learned friend Lord Mackay of Clashfern, who is in many ways the embodiment of wisdom in your Lordships’ House. How good it is to have him back with us and speaking as vigorously and to the point as he always does.

I cannot begin to rival the expertise or knowledge of the noble and learned Lords who have spoken, but shall give my noble friend the Minister a secular analogy. When we enter this Chamber from the Prince’s Chamber, we have in front of us that great classical sculpture by John Gibson of Queen Victoria. It is flanked on either side by the figures of Justice and Mercy. The figure of Justice holds in her hands, as the noble Lord, Lord Anderson, reminded us earlier, the sword and the scales.

Would my noble friend Lord Goldsmith seriously think, as he entered the Chamber, of removing that sword and those scales? Because that, metaphorically, is what he is proposing to do this afternoon if he does not accept the spirit of these amendments. It is palpably absurd—I refer to the interesting contribution of the noble Lord, Lord Rooker—to have an Environment Bill that has as one of its slogans, “The polluter need not pay”. It is absurd. Can my noble friend not recognise that absurdity?

I have said before in these debates that it is essential that an environmental Bill should command the support of Members in all parts of your Lordships’ House, particularly one that is meant to stand the test of not just some time but generations. We cannot have a Bill enacted that, in effect, does what my noble and learned friend Lord Mackay has just said and contradicts one of the fundamentals of English law.

I hope that my noble friend Lord Goldsmith will do what I urged him to do when speaking to an amendment on Monday. I said that because it was so important that the Bill should command the support of your Lordships in all parts of the House, he should convene some sort of round table and talk to us all. There is an answer to all these conundrums and problems that we are highlighting, because we all support the basic premise of the Bill. However, if we support that premise and intention, we cannot allow the Bill to go on to the statute book so fundamentally flawed as it is at the moment. So I say to him again, “Please talk to those of us who wish you well, who wish the Bill well, but who can never lend support on Report to a Bill that is so riddled with absurdity”.

Environment Bill

Lord Mackay of Clashfern Excerpts

Report stage
Monday 6th September 2021 Lords Chamber

[The Duke of Montrose (Con)]

My Lords, in the midst of all this great technical expertise, I would like to follow up one point that the noble Baroness, Lady Walmsley, touched on, which is how all this will be achieved. This amendment asks that a further metric be added to those already in the Bill. The Secretary of State is tasked with setting targets for the annual mean level in ambient air, and an amazing combination of statistics will be needed to get that.

Clause 17 asks the Secretary of State to prepare a policy statement, but who is actually going to produce all these measures? The noble Lord, Lord Whitty, hinted at what local authorities could do, but is the Government’s policy to pile all these tasks on to local government? Who will be blamed if the measures are not produced? Are the Government considering what the financial demands are likely to be? The noble Baroness, Lady Finlay, has given us some indication that they may be considerably more than is currently the case.

[Lord Mackay of Clashfern (Con)]

My Lords, I think the later contributions have shown that it is vital, in this connection, for the Government to focus on changing the materials that produce this. It is one thing to say, for example, that we want to go to zero carbon by a certain date. Well, surely we should have that kind of system applied to the way this development arises. Nobody wants to kill people, yet there is a substantial amount of this trouble arising in our country, and the remedy must be focused on getting rid of the particulates as far as possible. That is a very high aim, which is not always made prominent in the literature and the policies.

[Lord Goldsmith of Richmond Park (Con)]

I would like to thank all noble Lords for another important debate and to reassure the House that the Government view this matter as one of the utmost seriousness. As I have set out in previous debates that we have had on this issue, we are committed, through this Bill, to set at least two air quality targets. They will complement each other to fundamentally reduce air pollution in the worst areas, while driving continuous progress to benefit the health of all citizens across England.

Turning first to Amendment 4, tabled by the noble Baroness, Lady Hayman of Ullock, I would like to thank her for the time she has given me over the past few weeks, discussing this and other issues. I know she has also met with my officials and Professor Alastair Lewis, chair of the Air Quality Expert Group, to better understand all the other work we are doing on PM2.5. I thank her for her time in all those meetings.

I will start by reiterating the assurance provided in Committee, first, that the Government want stretching and ambitious targets, like everyone who has spoken in the House today, and, secondly, that the Government are following a robust and evidence-based process to set those air quality targets, which will focus on delivering the greatest possible public health benefits.

The Government are committed to working with internationally renowned experts to deliver evidence to inform air quality targets. We regularly engage with independent expert groups, such as the Air Quality Expert Group and the Committee on the Medical Effects of Air Pollutants, to ensure the process is informed by their advice and reflects the latest evidence, which includes WHO air quality guidelines.

In July, advice from the Air Quality Expert Group and the Committee on the Medical Effects of Air Pollutants was published. This showed that both groups support the proposal to set a concentration target and an exposure reduction target for PM2.5, though both acknowledged the difficulty in setting targets in this area. The Air Quality Expert Group highlighted the substantial challenges associated with modelling future PM2.5 concentrations, a point made by the noble Duke, the Duke of Montrose, including the many uncertainties and significant unknowns. For example, as our climate changes, the potential to reduce PM2.5 concentration also changes, because climate and weather strongly influence pollution levels. We may experience more rain and wind, which disperse pollutants and clean the air, or conversely more heatwaves, which lock in and exacerbate pollution. Some sources of pollution, such as shipping in the English Channel, require work with international partners to reduce emissions. This point was also made earlier.

As we take action to reach net zero, policies such as active travel will have co-benefits, but others may create tensions, as we see with anaerobic digestion and biomass burning. Many of these issues are not easily resolved or modelled, and this demonstrates why we should not be pre-empting or short-cutting the evidence required to underpin long-term target-setting decisions. While it is absolutely necessary to continue to achieve reductions in key pollutants in the air we breathe, the inherent complexity and diverse range of sources of PM2.5—both natural and manmade—means that significant reductions are much more difficult to achieve in practice.

Before setting these targets, it is vital to ensure that both the Government and the public understand the kinds of actions needed and the restrictions which may be required for them to be achieved. This is why we will be consulting on proposed targets and actions required, which may include significant changes to how we heat our homes and travel within towns and cities, early in 2022.

I will briefly respond to a point made by the noble Baroness, Lady Walmsley, about the timetable slipping. On the assumption that the Bill becomes law in its current form, or even in an amended form, allowing the timelines to slip would be a breach in law. We would be breaking the law and that is not something the Government could do, so we will not see this timeline slipping.

We are still working to understand the full mix of policies and measures that would be required to meet the WHO guideline of 10 micrograms per cubic metre, but we know that a range of restrictions on activities are likely to be needed in urban areas to meet any ambitious target. Meeting 10 micrograms would likely require policies, as I said in previous debates, including

“reducing traffic kilometres across our cities by as much as 50%”

and

“a total ban on solid fuel burning”.

As I said in Committee, I do not think it is

“right for us to set a target … that would impact millions of people and thousands of businesses”—[Official Report, 23/6/21; cols. 306-7.]

without first levelling with people about what would be needed and ensuring that we bring them with us in understanding the health benefits of achieving that target. Without fully understanding the policies needed to meet such a limit, we cannot know where the burdens of these policies will fall.

To date, this debate has focused primarily on the concentration target but, again, I remind noble Lords that we are setting two targets that will work side by side. To respond to the noble Lord, Lord Whitty, we have to set a long-term target under Clause 1 and the PM2.5 target under Clause 2. It is not a choice we have; it is inherent in the Bill. This dual-target approach is strongly supported by experts.

In addition to the concentration target, we are developing a new type of target that focuses on reducing people’s exposure to pollution. The population exposure reduction target will be a more important driver for achieving health benefits, both at national and local level. Experts tell us, and a number of speakers today have made plain, that there are no safe limits for PM2.5.

The long-term exposure reduction target will drive a process of continuous improvement to reduce people’s exposure across the whole country, even in locations where the concentration target has been achieved. It will inform how local interventions need to be targeted, particularly where the most people are exposed to elevated levels of pollution. The concentration target that we have spent much time debating serves to provide a general minimum standard and will focus on reducing levels where concentrations are highest, but it is not by any stretch the whole story.

As I have repeatedly set out in debate, in letters to the House and in meetings over the past year, we are working at pace on this. But it would not be right for us in this House to set a target without understanding the measures needed to meet it and bringing the public on board. The Government are therefore not able to accept this amendment.

Amendment 12 was also tabled by the noble Baroness, Lady Hayman. I assure her that, as air is part of the definition of the natural environment, it already falls within the scope of the significant improvement test. In future EIP reviews, we expect new evidence—including updated WHO guidelines, emerging scientific evidence and the like—to be relevant to an assessment of whether further measures are needed to meet interim and long-term targets. The intent of the noble Baroness’s amendment is therefore already delivered by the Bill as drafted and I ask her not to press it.

On Amendment 54, tabled by the noble Lord, Lord Kennedy of Southwark, I thank him for meeting me and Rosamund Kissi-Debrah the week before last. I can say only that if I was not already convinced of the urgency of the case, I certainly would have been by that conversation. Rosamund is an extraordinary campaigner and speaks with huge authority; of course, what happened to Ella is heartbreaking on every level.

In setting these air quality targets, it is as crucial to have a scientifically reliable understanding of the pollution sources and their dispersion as it is to have in place sufficient means to monitor progress and assess compliance. I assure the noble Lord, Lord Kennedy, that the Government are working extensively with experts to seek advice on this and that the details of the targets, including monitoring requirements, will be set out in secondary legislation following a public consultation.

Making sure that information about air pollution is publicly available is clearly important; we already have legal obligations to do so. We do this through a range of channels, in particular the UK-AIR website, which carries an air quality five-day forecast and live information about pollution levels around the country. We are committed to improving the accessibility and usefulness of that information to a wider range of users, and we will undertake a thorough and comprehensive review of the UK-AIR website and the daily air quality index to ensure that they are doing what they are supposed to be doing.

In addition, the Government are funding work with health professionals in a number of therapeutic areas to develop advice for patients about air pollution. They are also looking at working with relevant health charities in longer-term campaigns aimed specifically at the most vulnerable groups.

The amendments tabled by my noble colleagues are hugely important contributions to this debate. I think we all agree that air pollution, particularly fine particulate matter, needs to be reduced urgently to protect the nation’s health. We know that, in setting both the concentration target and the population exposure reduction target, we need to be ambitious. Indeed, we are determined to be ambitious; that is a view shared right across government.

However, we also have to be realistic in how we set that ambition and consider the practical challenges and costs before enshrining new targets in legislation. It is so important to bring society with us and therefore consult properly and meaningfully on the measures that we are likely to need to implement to achieve those significant reductions in air pollutant levels in the future; that is something we will have to do.

I hope that I have managed to reassure at least some noble Lords of the seriousness with which we take this issue, and I beg them not to press their amendments.

Environment Bill

Lord Mackay of Clashfern Excerpts

Report stage
Monday 13th September 2021 Lords Chamber

[Lord Wigley (PC)]

My Lords, as this is the first time that I have addressed the Chamber in person since March of last year, I put on record my appreciation of the Zoom facility that made it possible for me to participate from home and thank all the staff who made it possible. It enabled me to play a small part in Committee on this Bill, but it was a limited contribution: while Zoom worked well for general debates, it was not ideal for committee work.

I am glad, therefore, in supporting Amendment 59, moved by the noble Duke, the Duke of Wellington—and indeed Amendment 60—to build on the comments made in Committee on the important issue of water pollution and quality. I thank the dozens of people who have written to us expressing their concern about this matter—it clearly touches a raw nerve.

The factors causing us in Wales to fail to meet the “good” status designation within the water framework directive are, first, agriculture-related and diffuse pollution; secondly, metal and coal mine pollution; and, thirdly, waste water, which is a water company responsibility and the subject of Amendments 59 and 60. It is worth noting, to put it in context, that in Wales the figure for pollution arising from waste water is 14%, compared with, I believe, some 50% in England.

It is only fair to note, therefore, that Dŵr Cymru—Welsh Water—has put in considerable investment in regard to this matter. For example, no less than £100 million has been spent in Llanelli alone over a five-year period. That accounts for about 50% of the streets that are potentially impacted by this problem. It has spent £100 million on addressing this very issue—and that is only one of many old industrial areas that need such investment. Welsh Water estimates that it needs between £9 billion and £14 billion over three decades to fully resolve the problem. So the scale of the challenge—to resolve these issues—requires a central government capital programme in both Wales and England.

One of the sources of difficulty in Wales in not meeting the “good” status designation within the water framework arises from phosphates, emanating from animal manures and chicken farms. That of course is addressed elsewhere in our discussion.

One matter of concern to me—I would be grateful to the Minister for his observations on this—is that within England there seems to be a target of reducing spill numbers rather than emphasising water quality as a focus. Clearly, a reduction in spill numbers will help, but it is the overall impact on water quality that really matters. Despite the valid concerns expressed in Committee and today about the situation in Wales, which can impact on England when rivers cross the border, it is worth noting that the proportion of rivers which reach “good” status in Wales is twice as high as that in England.

From the viewpoint of Dŵr Cymru—Welsh Water—two other priorities are, first, banning wet wipes which contain plastic, as mentioned in an earlier debate, and which are a major factor in blocking pipes, leading to severe pollution problems; and, secondly, reversing the trend of the continual increase in impermeable areas, which worsens the impact of CSO spills as there is nowhere else for the water to run. Incidentally, one challenge for Welsh Water is the fact that there are currently over 68,000 unregistered septic tanks in Wales. That gives your Lordships an idea of the problem. The avoidance of pollution from those tanks must also be one of the challenges to be addressed.

Some of the matters which I have highlighted are purely for Wales and must be addressed by the Welsh Government and Welsh Water. Others have a cross-border dimension relating to rivers which flow from Wales to England, and yet others are general issues which need to be addressed on a UK basis. Government amendment 128 extends to England and Wales; I would be glad if the Minister can confirm that he has the agreement of the Welsh Government on that amendment’s provisions.

I commend Amendments 59 and 60 as ones which focus on these issues and give the Government a chance to show that they are serious about them. I shall certainly support the amendment of the noble Duke, the Duke of Wellington, if he presses it to a vote.

[Lord Mackay of Clashfern (Con)]

My Lords, the aim of the noble Duke’s amendments will be something that we all appreciate. I just wonder exactly how all this difficulty arises. Rainwater and groundwater are separate from sewage and will surely be very different in quality. While they may have some very small pollutants in them, generally speaking they are pretty wholesome.

It seems very strange to require that a water system should receive the sewerage system. Long ago, when I was at the Scottish Bar, I was instructed by a company that was then a water company in Scotland. The director of that company made it very clear to me that water and sewage were different things, and the last thing he would wish to agree to was to combine the two. Apart from anything else, the likelihood was that the groundwater and surface water would be greater in volume than the sewage. It therefore seems that the amendment that is proposed to change the system is very good, except that it would seem to require that it be done by the undertaker—which I take to be the water company. At the moment, the water company is under an obligation to accept the sewage. That must surely stop. It must be a ridiculous system that puts together two such completely different elements.

I very much support the amendment proposed in detail by the noble Lord, Lord Dannatt, a little while ago. We need to come out of the idea of putting these together and separate them, because the floodwater difficulties are great enough. To add sewerage responsibilities to those of flooding seems an extraordinary example of what one should not do.

Environment Bill

Lord Mackay of Clashfern Excerpts

Report stage
Wednesday 15th September 2021 Lords Chamber

[Lord Deben (Con)]

My Lords, I hope that the Climate Change Committee will be one of the appropriate organisations to which this amendment applies; I declare an interest in that sense. There is nothing in this amendment that the Minister has not committed himself to already. All it would do is make sure of the advantages that we have in the habitats directive, which was taken into our own law. The Climate Change Committee has taken to it very strongly because of the additional advantages of sequestration and the treatment of land, which this helps in a significant way. I find it very difficult to see why the Government cannot accept it, unless there is somebody hidden away in No. 10 who has a plot.

I therefore hope that my noble friend realises what will happen if the Government do not accept this: he will have to whip the Conservative Party to vote against the very things that he says he will do. All this amendment would do is to make sure that any successive Minister would also have to do those things. That is, after all, a legacy that he would no doubt like to leave.

[Lord Mackay of Clashfern (Con)]

My Lords, Clause 109(3) says:

“The Secretary of State may make regulations under this section only if satisfied that the regulations do not reduce the level of environmental protection provided by the Habitats Regulations.”


I suggest that all the Minister needs to do from this point of view is delete the words “satisfied that”.

[Baroness Parminter (LD)]

My Lords, I add the support of our Benches for this important regulation on day four of Report. As the noble Baroness, Lady Young of Old Scone, said, the habitats regulations are the jewel in the crown in terms of protecting our sites of most special protection for our wildlife and our birds, our bitterns and our nightingales.

It has not been mentioned in this debate so far today that the proposals from the Government to amend these regulations were smuggled in on Report down the other end. These are incredibly important regulations. No one is saying that things must be set in stone for ever, but if they are to be changed, it should be done with full and clear consultation and for the right purpose.

The Minister said in Committee, “They’re not working.” I live in Surrey, which is one of the most densely populated areas, and they are working there. With the Thames Basin initiative of 11 planning authorities, we are managing to build the houses and protect the sites at the same time. If there are going to be changes, the Government should ensure that there is no regression, which this amendment would guarantee, and that there is consultation with experts. As the noble Lord, Lord Deben, said, that might be a slightly broader list than that suggested in the amendment so far but certainly there needs to be that expert consultation.

If this amendment is not accepted, it will leave the impression that there are other reasons why the Government are prepared, at a time when we are facing a nature crisis, to sweep aside these most important protections. That will make people feel that perhaps it is because they want to ensure that planning regulations are given a light touch, which, frankly, is not appropriate given the environmental challenge and crisis that we face.

Environment Bill

Lord Mackay of Clashfern Excerpts

Consideration of Commons amendments
Tuesday 26th October 2021 Lords Chamber

[Baroness Bennett of Manor Castle (GP)]

My Lord, extremely briefly, I offer the Green group’s support for all the opposition amendments in this group. On Motion E1, I have a question for the Minister. Will he acknowledge to the House that we cannot keep the same mantra of “It is either deal with climate change or deal with national security” and acknowledge that, as the integrated review says, the climate emergency is the number one threat that the Government should be focused on internationally?

On introducing this debate on Motions F1 and G1, the noble Lord, Lord Krebs, said that he was not commenting on any individual involved in the OEP. I shall comment on individuals, to note the two noble Lords moving those Motions and urge noble Lords to support those extremely distinguished Members of our House in their area of absolute expertise and get behind them.

[Lord Mackay of Clashfern (Con)]

My Lords, when these amendments were dealt with in the House of Commons, the Minister said that she was very satisfied to have the office of environmental protection independent. That is what I want, and I believe that that is what the Government want, but she went on to say that the Secretary of State will be accountable for the OEP. I am in difficulty about the precise nature of that accountability. This is not the easiest question to answer, so I gave notice this morning that I proposed to ask it, so that my noble friend might have an opportunity, if he wished, to think it over. Obviously, the Minister dealing with this in the House of Commons must have had an idea in mind.

This arises in connection with the giving of instructions. The strange thing about the instructions and guidance is that the guidance does not need to be followed. It has to be seen by the Houses of Parliament before it passes, but once it is passed, it need not be performed. To my mind, that is a rather exceptional situation. Why should Parliament be asked to study carefully what the department—the Secretary of State—is proposing but then the organisation that is to receive the instructions need do nothing about it? That is a remarkable situation, but it ties into the idea of the accountability of the Secretary of State for this independent body.

I should be glad to know precisely how this operation is supposed to work. How is the Secretary of State responsible, apart from saying that the OEP is independent and he must secure that at all costs? If that is all, very good, but I suspect that the Minister in the Commons was thinking of something a little more complicated than that, and I hope the Minister can explain it to us in due course.

I think that the Motions in the names of the noble Lords, Lord Krebs and Lord Anderson, are pretty essential to the working of this arrangement, but the principal fact that I wish established is that the OEP should be independent, as the Minister said in the House of Commons.

[Lord Duncan of Springbank (Con)]

My Lords, I took the opportunity to support the noble Lords, Lord Krebs and Lord Anderson, in the previous rounds of this proposal, and I will continue to do so.

The office for environmental protection is the beating heart of the Environment Bill. We are about to embark on an extraordinary gathering of people about climate change here in the UK, in Glasgow. The eyes of the world are upon us. There are suspicions that this particular element of the Environment Bill is not as strong as it needs to be. The amendments that have been put forward are a useful adjustment to previous amendments and I believe that they are workable. Without them, the pressures that we put upon Dame Glenys Stacey will be immense. The suspicion will linger always that she is somehow or other beholden to the Government in one fashion or another, and there will be continued requests for clarification, and for clarity about her behaviour as well as that of her board and her team—this will go on.

We need the absolute certainty of independence, which we can achieve here today, through these amendments. If we can do that, we can set sail upon a fine voyage—we set sail just before COP, with a very clear successor body to the European Commission, which can do what the European Commission once did—that is, hold power to account.

The amendments are before us. It is up to this House to decide what to do with them.