Environment Bill

Lord Oates Excerpts

Committee stage
Wednesday 14th July 2021 Lords Chamber

Speaking personally, I cannot see why, if we were to go down this route, the owner of the soil should not be capable of being bought out at the behest of one of the rights holders in the way the amendment proposes. After all, that would be even-handed. I certainly do not think all this is likely to be helpful in the real world. I urge the Government to approach the direction of travel proposed by this amendment with the greatest circumspection. I anticipate it would end up causing more harm than good, and the silver tongue of the noble Lord, Lord Cameron, is unlikely to make me change my mind.

[Lord Oates (LD)]

My Lords, I also welcome the noble Lord, Lord Cameron, back to his place in this House. Like the noble Baroness, Lady Jones of Moulsecoomb, I must admit that, due to the diligence of his attendance on-screen, I too had not been aware that he had not been present. I understand the arguments made by the noble Lord for his Amendment 276A and recognise that he has proposed it very much as a probing amendment, but it seems a complex concept to introduce at this stage and it would need quite a lot of consideration.

I want to concentrate mainly on the amendments in the name of the noble Earl, Lord Devon. I am neither farmer, landowner nor lawyer, but, like many others in this Committee, I found his arguments compelling. As he said, conservation covenant agreements offer a potentially exciting and positive development, but, as he also told us, there are significant complexities. I am not sure that I agree with the noble Baroness, Lady Jones of Moulsecoomb, that they are just minor wrinkles to be smoothed out, because they seem pretty fundamental. Like the noble Earl and the noble Lord, Lord Lucas, I feel that introducing for-profit organisations into this area does not seem sensible, particularly at such an early stage in their development.

Likewise, the ability to bind successors in perpetuity is clearly very significant, as is the ability to seek exemplary damages on the basis of those agreements. Whatever one thinks, the idea that a landowner could find themselves bound in perpetuity to a commercial interest and subject to exemplary damages simply by the exchange of messages, as the noble Earl explained, just cannot be right. While I am instinctively suspicious of a proposal from a lawyer, even one as articulate as the noble Earl, Lord Devon, to provide more work for lawyers, nevertheless on this occasion I accept fully the argument that he makes. Any agreement of such enduring significance must surely first be explicitly recognised as a covenant agreement, not just something that seems to be one—and surely no one should enter into such agreements without professional advice, given their significance.

As the noble Earl said, covenant agreements offer an important new approach that could be extremely significant. However, given that they also trespass on very complex areas of law, they should be treated and proceeded with cautiously. Therefore, I hope that the Minister will take very seriously the arguments put forward by the noble Earl and look at how the Government can address this important part of the Bill.

[Baroness Jones of Whitchurch (Lab)]

My Lords, I declare an interest as a member of the South Downs National Park Authority. I am very grateful to the noble Earl, Lord Devon, for tabling these amendments and introducing them with such clarity. As the noble Lord, Lord Cameron, said, he was very persuasive. On that subject, we welcome the noble Lord, Lord Cameron, back to his seat—he made his own very persuasive and silver-tongued contribution. I listened very carefully to what he was saying, but I am afraid that, like other noble Lords, I was not totally persuaded. Perhaps it is just because we have not had enough time to consider what seemed, the more we talked about it, to be a more and more complex issue. Forgive me if I do not dwell on that, because I feel I am out of my comfort zone in understanding the implications for the use of common land. Perhaps we can return to that issue at some point when we have more time to debate it in detail.

I return to the amendment proposed by the noble Earl, Lord Devon. We welcome the essential principle of the conservation covenants in the Bill, which the noble Earl said was a result of the Law Commission’s recommendations. As a number of noble Lords have said, there are real concerns as to how these covenants will be applied in practice. The noble Earl said that it was particularly important that smaller farmers understood the full implications of entering into these covenants and are protected from exploitation. He has given some examples of the perverse consequences of historic covenants in the past, and I suspect that they will become more common in future. Already we are hearing in the south downs about farmers being approached by public bodies that want agreements to provide a home for their carbon offset obligations. I have no doubt that those sorts of pressures are only going to increase.

As the noble Earl says, it is in danger of becoming a bit of a wild west situation. It is likely that biodiversity net gain will create a new swathe of developers, public and private, looking to do deals with farmers to offset the damage that they are doing to the environment elsewhere. Already we are hearing talk of environmental stacking, whereby farmers have multiple obligations to different bodies to deliver environmental benefits, with all the legal complexities that would ensue if that became commonplace. Incidentally, this once more underlines the case of my noble friend Lady Young of Old Scone that we need a land-use strategy so that growing food, carbon offsetting and enhancing biodiversity all develop into a coherent policy whole, and we know where the priorities lie.

Of course, these developments could be an advantage to farmers and the environment if they were managed properly, but these agreements need to be managed with care to ensure that farmers are not exploited by big corporate players and their lawyers. That is why the noble Earl, despite being a lawyer, is quite right to pursue these amendments. They would make it clear that the covenant was a formal legal document, signed as a deed, which one hopes would ensure that the farmer received appropriate legal advice.

The noble Earl is also right to probe, in Amendment 274, what organisations that are not public bodies or charities can be defined as responsible bodies for the purpose of this clause. We agree that there are real concerns about for-profit organisations entering this market, with the potential lack of responsibility and knowledge that many of these organisations will have. We need to be assured that all the organisations described as responsible bodies have expertise in conservation. Since many of these agreements will be for the long term, we need to be clear about what happens if a responsible body holding a covenant subsequently becomes insolvent or ceases to exist, or simply sells that covenant on. A number of noble Lords have probed the consequences that could occur from applying those covenants in perpetuity, and the impact that that could have on the individual.

It seems to me that we need answers to this, and the noble Earl’s amendments go a considerable way to addressing it. I also agree with the amendments laying greater duties on the Secretary of State to manage the covenants in those circumstances, particularly in the longer term. As the noble Baroness, Lady Jones of Moulsecoomb, said, what is the point of having the stopgap of the Secretary of State if he is not required to do anything, as is the case under the current provisions?

In conclusion, I very much believe that the noble Earl has made a powerful case for these amendments. Alarm bells are ringing about the actions we need to take to get this right. I hope that the Minister has heard the concerns from around the Chamber. It would be helpful if, as a matter of urgency, she was able to meet the noble Earl—and I hope that we will be able to find a solution and a revised wording of the Bill.