Clean Air (Human Rights) Bill [HL]

Lord Moylan Excerpts

2nd reading
Friday 8th July 2022 Lords Chamber

[Lord Moylan (Con)]

My Lords, I thank the noble Baroness, Lady Jones of Moulsecoomb, for introducing this important Bill, as I thank her for her typically witty, engaging and gracious remarks about a former Mayor of London.

It is humbling that we are holding this debate in the presence of Rosamund Kissi-Debrah, and it is not necessary for me to repeat the sympathy that many Members of the House have expressed towards her and her family.

I welcome the Bill in its principles, its objectives and its thrust. Too many people have their lives shortened by air pollution. Too many of those are children. I agree with the noble Lord, Lord Kennedy of Southwark, that there will be legislation and action to improve our air quality whether in this Bill or another, but I am afraid that I have some concerns not about the thrust and objective of the Bill but about its constitutional and legal implications.

The first is in the very Title: the question of the words, “Human Rights”. It is of the essence of a human right that it is universal. It pertains to our human nature and character. It disturbs me that we would wish to create a human right that applied peculiarly to the residents of England and Wales or the United Kingdom—if the noble Baroness will forgive me, I have not checked the territorial scope of her Bill and how it applies—for it seems to me a misconception. It is made worse by Clause 1(1), which starts by creating a legal right to breathe clean air, with which I have no problem, but then goes on effectively to rewrite the European Convention on Human Rights in its domestic application, I would think most insensitively and inopportunely at a time when so many others wish to rewrite the convention as it applies domestically. I hasten to add that I am not in principle one of them; I strongly believe that whatever one thinks of the Human Rights Act, the United Kingdom should stick to the European Convention on Human Rights.

My second concern relates to the democratic effect of the Bill. Here, I turn to the duties imposed on the Secretary of State. Clause 2 creates new powers for the Environment Agency that are essentially scientific in character. They require the determination of the effect of certain pollutants. That is not of course a problem, but what is a problem is that subsection (5) then requires the Secretary of State effectively to legislate through regulation to put those findings into law. What is missing, first, is any scope for scientific dispute, any idea that there might be other scientists out there who want to argue the toss or do not agree. They are to be ignored if those serving the Environment Agency have reached a particular view. There is no scope for public debate. Perhaps the noble Baroness does not think that the public should have an input to the scientific side—I understand that—but there is no scope for public debate. Most importantly, as the noble Baroness explained, there is no scope for reversal. If it were discovered, as science is a process of discovery, that what had been considered a harmful pollutant turned out to be the wrong chemical and that a different chemical was the cause of a particular problem, the Bill would require primary legislation to do something about that.

The pattern, because it is embedded in the Bill, continues. Clause 2 also gives new powers to the Committee on Climate Change largely of a scientific character—again, there is no problem with that—but subsection (11) treats the Secretary of State in exactly the same way; that is, he or she is a mere tool of the agency in question. There is no debate, no scientific dispute, no reversal.

All these issues are subject to amendment and improvement in Committee, because the Bill is important and, in a fit state for enactment, should go ahead. It is of course possible that I have misread or misunderstood what is on the page in front of me, so I will listen carefully to the reply that the noble Baroness gives, and I am willing to learn when she comes to wrap up.