Levelling-up and Regeneration Bill

Lord Randall of Uxbridge Excerpts

Committee stage
Thursday 18th May 2023 Lords Chamber

[Baroness Hayman of Ullock (Lab)]

My Lords, I have a number of amendments in this group. I will not go into detail on all of them but will talk about our concerns about this part of the Bill and home in on a number of them.

Part 6 gives Ministers the power to amend or replace 17 systems of environment assessment with a new environmental outcomes regime. Changes to these technical systems will have significant environmental impacts on the ground. Environmental assessment provides the critical processes that ensure that nature, climate and heritage considerations are properly considered in the planning system and that help protect sensitive sites from damage. Given the potential for environmental harms—or benefit, of course—to arise from these changes, we believe that detailed parliamentary scrutiny is essential. We are concerned that, as drafted, Part 6 largely freezes Parliament out from shaping the process that is going to have significant impacts for net zero and for nature’s recovery.

The bulk of the detail of the environmental regime, including the outcomes that it will be built around and which actual projects it will apply to, are all going to be set by secondary legislation. In the words of the Office for Environmental Protection, the body set up by the Environment Act to scrutinise environmental policy,

“its potential environmental implications will only become fully apparent through ‘EOR regulations’”.

We believe that giving the Secretary of State Henry VIII powers to reshape all systems of environmental assessment is unsatisfactory and inappropriate, considering the climate and ecological emergency that we are living through. My amendments would require Ministers to set higher environmental ambitions in primary legislation and allow for greater parliamentary scrutiny of any subsequent EOR regulations. This would enable parliamentarians to ensure that the new processes lift rather than lower environmental standards, something that Ministers have often declared they want to see.

My Amendment 372 would ensure that the central aspect of the EOR regime—the nature of the environmental outcomes it will strive to deliver—is fully set out in primary legislation. Currently, the lack of detail in this area is such that climate is not in fact mentioned at all within the EOR scope set out in Clause 138. Perhaps the Minister will explain why. Friends of the Earth has observed that we

“are left to hope that Government will, at some later stage, include the protection of the climate as an environmental outcome”.

A consultation on the EOR published by DLUHC in March sheds little further light on this baffling omission of climate from this Part of the Bill. The consultation suggests that climate change will be inherent in the consideration of the factors listed in Clause 138 and adds that Ministers can always use secondary legislation to update it if required. Does the Minister agree that such a relaxed approach to the consideration of climate impact within environmental assessment is inappropriate in a climate emergency? My Amendment 372 clarifies that protection of the climate from the effects of human activity should be a core environmental outcome, set through primary legislation.

My Amendment 371 adds further essential details to the description of other outcomes—for example, the need for natural environment outcomes to include improvements to the condition of protected sites. Adding these core environmental aspects to the Bill will then embed them into the EOR regime right from the start and allow their detailed application to be further considered through proper scrutiny.

My Amendment 377 would strengthen the non-regression safeguard in Part 6 and ensure that the EOR regime will not be weaker than current systems of environmental assessment. The current safeguard set out in Clause 142 is far from robust, because it gives the Secretary of State the power to actually weaken standards in the EOR regulation, as long as they are satisfied that the overall level of environmental protection will not be less than before. The Office for Environmental Protection has highlighted that this “overall” wording allows for highly subjective assessments to be made by Ministers, with declines in crucial standards potentially being offset by strengthening of standards that a Minister alone feels has the same weight. For example, a Minister could balance weakened standards for the condition of protected sites with improvements in standards for environmental data collection, allowing the weakening of protected sites to proceed, to the detriment of nature. 

My Amendment 377 replaces this weak safeguard with a stricter legal test, requiring no diminution of environmental protection in any one area. This provides a higher bar to shape EOR regulations and for parliamentarians to assess them against. It also echoes the wording of the non-regression clause—Section 20—in the Environment Act 2021. This robust non-regression test should also be applied to this Bill. I hope the Minister agrees. The Government have already responded positively to one set of amendments to Part 6, and we thank them for that.

My Amendment 369 and Amendments 375 and 376 tabled by my noble friend Lady Taylor of Stevenage highlight that, due to confused drafting, Clauses 139 and 141 would undermine the mitigation hierarchy, which is a keystone in environmental protection in the planning system. We very much welcome government Amendments 373A, 373B, 373C, 373D, 373E and 373F, which were tabled in March to address this. Will the Minister and her department look again at how this responsive approach could be extended to ensure that the EOR regime has climate considerations and that there is a robust non-regression clause built into it?

The process for scrutinising the regulations that will implement Part 6 needs to be enhanced. Currently, the Bill sees EOR regulations subject only to the affirmative procedure, which, of course, precludes amendment and almost always leads to the regulations being passed. Given the significant environmental impacts that EOR regulations will have, we believe that a more thorough and constructive form of scrutiny is required. My Amendment 388 will achieve this by requiring EOR regulations to be made under the super-affirmative procedure. This means we have an additional 60-day period for amendments and will allow for meaningful input into the detail of the new system.

It is important to highlight that a number of the environmental assessment systems that EOR could replace were originally set through primary legislation. Detailed parliamentary scrutiny and potential amendment of replacement regulations are clearly appropriate and commensurate with the need to get right the detail of vital climate and nature policies. In a letter to Peers following Second Reading, the Minister suggested that scrutiny concerns were unfounded, as the Government’s EOR powers were tightly constrained by their commitment to consultation with the public and public authorities. Public consultation is welcome, as long as it is for longer than 10 days, as I said earlier, but it does not provide a constraint on ministerial power. It is also no substitute for proper parliamentary debate.

Together, my amendments constitute a repair package for the EOR proposals. Currently, they constitute a ministerial power grab, with the Government asking us, once again, to trust they will do the right thing with the considerable powers that Part 6 confers. These amendments will provide a legislative underpinning to limit this leap of faith, embedding high environmental ambition in the Bill and enabling meaningful parliamentary scrutiny of any additional detail. I urge the Government to carefully consider the case for these improvements to Part 6 of the Bill, so that it meets the minimum scrutiny standards we expect of such significant policy changes. I beg to move.

[Lord Randall of Uxbridge (Con)]

My Lords, I will speak to my Amendment 384. Before I start, as there has been some gap between my appearances in this Chamber due to health issues, I remind the Committee of my conservation interests as laid out in the register. My amendment is supported by the noble Baronesses, Lady Jones of Whitchurch, Lady Willis of Summertown and Lady Bakewell of Hardington Mandeville. I was very grateful to those noble Baronesses for moving some amendments in earlier stages of Committee when I was not able to because of health issues.

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[Lord Deben (Con)]

My Lords, I too am not always in agreement with the words of my noble friend, but I strongly support the amendment.

The key point is that chalk streams are more vulnerable than almost any other water because they are concentrated in areas of considerable development and they are subject to considerable abstraction and the results of sewage disposal. There is therefore a particular reason for isolating them as opposed to other things.

The crucial reason is that we are fortunate enough to have the majority of the chalk streams in the world. Britain needs to be very careful about protecting those few things that we have almost uniquely. I have to say to the Government that, awful though the REUL Bill is, this subject is clearly not going to be part of it, so this is an ideal opportunity to make that statement.

I fear that I know precisely what the civil servants will have said to the Minister. First, they will have said: “First of all, we really need a wider range of things here. We need to apply this much more carefully because otherwise people who will not be covered by this will object”. Secondly, they will have said: “It’s very difficult to isolate chalk streams when we are not covering this, that and the other”. Thirdly: “There will be other opportunities to do this in other legislation”. Fourthly: “This is a very big Bill already and we don’t want to burden the system with anything more”. Fifthly: “This particular amendment doesn’t cover all the chalk streams that ought to be covered, and therefore it would be better to wait until we can cover them all”.

There may be other things that civil servants will have told my noble friend, but I suspect that those are the first five. I suggest to him that this is the moment in which he does not listen to, “Better not, Minister”, and puts in, instead of that, “Be off, civil servant!” We need to have this. It is not perfect, but if we wait for perfection, we will do nothing. I just hope that the Minister, in whom I have great confidence, will be able to say, “This is a sensible thing to do and I can’t really think of any good reason for not doing it”—and therefore will do it.

[Lord Randall of Uxbridge (Con)]

My Lords, briefly, I join all those who have supported my noble friend’s amendment. I think that if my noble friend the Minister were sitting on the Back Benches he would probably have added his name. We know he has a difficult task but we wish him well in his endeavours.

[The Earl of Caithness (Con)]

My Lords, how sensible it was of my noble friend Lord Trenchard to degroup this amendment from the previous group, which already had 29 amendments in it. This is far too important an issue to be wrapped up in a comprehensive debate.

We should not be in the position of having this debate today. One of the reasons why we are is that the NRA was abolished. When we privatised water—I had the privilege of taking the Bill through this House—we set up the National Rivers Authority. There is nobody better at protecting species or habitat than former poachers, so we put into the National Rivers Authority those who had been in the water authority; one day they were the enemy, and the next they were the best gamekeepers you could possibly have. Under the NRA, there were distinct improvements within the water industry and it was a pity that it got amalgamated into the Environment Agency. It lost its focus and its speciality, and then of course the Environment Agency’s funding was cut.

Having said that, I thank the Government for what they have done. Credit must be given to them: they have a water plan and a storm-water reduction plan, and they have now given powers to Ofwat to consider the environment, which is a huge step forward. They have supported the catchment-based approach and, in particular, they are supporting the national chalk stream restoration group.

We have been in a similar position many times before. There have been lots of reports and discussions, but maybe—just maybe—this time we might get it right. Everybody is on the same page and singing the same song. They are supported by the Government, who have said that the door is slightly ajar. Let us barge through it now and do something for these chalk streams.

The restoration group, as my noble friend Lord Trenchard said, is there to drive progress by government and regulators, water companies, landowners, NGOs, river associations and individuals passionate about their rivers. Are we not lucky still to have people such as Charles Rangeley-Wilson, who is chairing the group and has given hours of his life to chalk streams? The Government must make better use of this input. We are so lucky to have those individuals, and I thank them.

I reiterate what my noble friend said about the one big wish. This amendment is designed to help push that one big wish through into beneficial action for the chalk streams. They are hugely important. I have to admit that they were not important in my life until recently; I was much more concerned about the tumbling rivers in the north of Scotland than chalk streams. But how we manage chalk streams is the litmus test of how the Government are going to handle all the difficulties around improving the environment.

One of the big problems in chalk streams is sewage, which has been in the headlines nearly every day for many months now. We had a “sorry” from the water authorities yesterday on this. If you go to Dorset to walk along the banks of the River Lym, you will see notices saying to keep out, as there is E. coli in the river. That is unacceptable in this day and age but sewage is not the only problem. It will be quite easy, now that the cost-benefit analysis has changed, to put in tertiary sewage works at Evershot and at Toller Porcorum on the upper reaches of the River Frome. That is not a problem.

More of a problem is going to be the septic tanks. A lot of villages, as well as individual cottages, houses and farms, are still within the catchment area of chalk streams and all with septic tanks. Those tanks cause a huge amount of problems, particularly in dry weather. The summer months, when the water flow is low and sewage tanks which are not up to standard are disgorging into the drains or waterways, are the real problem. It is an underestimated problem but it will be a huge one for the Government to have to tackle.

Besides that, the Government will have to tackle us humans in a different way. They have to be prepared to say to us humans: “You cannot fill your swimming pools, you cannot water your gardens or do the abstraction that you did”, as this is only going to be compounded because of climate change. In parts of France—we have not even got to the really hot part of the summer—locals are being told that they cannot do things with water that they have always taken for granted. This is going to be a hugely difficult message to get across, but we need to change our habits for the benefit of the environment. I hope that my noble friend will continue to push on this, but he needs to get the message across that everything being done, which will be costly, is for the environment and we have to adapt to it.

My noble friend will have to take on farmers too. There cannot be, within the catchment areas, fallow fields for much longer. There cannot be maize or salad crops grown, unless there is an immediate crop coming along, because if there is a fallow field you will get run-off and sediment. Noble Lords may have seen the news recently from parts of Italy, where there has just been six months’ rain in one and a half days. The run-off from that has been horrendous. If run-off gets into water—into chalk streams—that causes huge problems. It causes sediment on the base of the stream, which makes it much more difficult for the trout to spawn. If the trout have spawned and you get sediment, you are going to suffocate the eggs. The farmers are another challenge that the Government have to take on.

Another challenge is the highways department, as an awful lot of sediment comes off highways. I see that one particular recommendation from the chalk stream restoration group is about highways, but it alarms me that it has a nasty red cross beside it, where it says there is no action at all yet. Can my noble friend tell me what action he is taking to berate the Department for Transport and local authorities, so that they make arrangements such that the sediment which comes off the roads does not go unfiltered into our precious chalk streams?

There might have to be arguments with those who support beavers. I am a supporter of beavers in the right place, but in most cases beavers and chalk streams do not go together. What the beavers will do will slow down the water, increasing the sediment. It comes back to the problems that sediment causes, which I have just been describing.

Then of course there is water abstraction in its widest sense; I have talked about that a little. The NRA was tackling that hard, and I pay tribute to more individuals: people such as Richard Slocock, who stopped the River Piddle in Dorset being a dried-up bit of river. He worked with the NRA and the Piddle has now become one of our classic chalk streams again. Sir John Betjeman, when he was at Marlborough, was filled with glory by the sight of trout in the River Kennet. When I was at Marlborough, the trout did not have quite the same effect on me. But very close to where Sir John Betjeman was filled with glory, my noble friend Lord Benyon on the Front Bench—Richard Benyon, as he then was as Minister for Agriculture—stood on completely dry land in the middle of that river and later remarked in the House of Commons that the Kennet

“was as dry as the carpet”—[Official Report, Commons, 8/12/11; col. 405.]

that he was then standing on.

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Moved by

[Lord Randall of Uxbridge]

387: After Clause 151, insert the following new Clause—
“Purposes and plans of protected landscapes(1) National Parks, the Broads and Areas of Outstanding Natural Beauty must be managed in order to contribute to—(a) restoring, conserving and enhancing biodiversity and the natural environment;(b) meeting environmental targets under Part 1 of the Environment Act 2021 and the Climate Change Act 2008;(c) the implementation of any relevant local nature recovery strategies under section 104 of the Environment Act 2021;(d) the delivery of an environmental improvement plan prepared under section 8 of the Environment Act 2021; and(e) equitable opportunities for all parts of society to improve their connection to nature of those areas and the enjoyment of their special qualities.(2) The purposes included in subsection (1) must be prioritised in addition to the purposes listed in section 5 of the National Parks and Access to the Countryside Act 1949, section 2 of the Norfolk and Suffolk Broads Act 1988 and section 87 of the Countryside and Rights of Way Act 2000.(3) Relevant management plans must include targets and actions intended to further the purposes specified in subsection (2).(4) Relevant management plans include plans under section 89 of the Countryside and Rights of Way Act 2000, section 66 of the Environment Act 1995 and section 3 of the Norfolk and Suffolk Broads Act 1988.(5) In exercising or performing any functions in relation to, or so as to affect, land in a National Park, the Broads or an Area of Outstanding Natural Beauty, any relevant authority must further the purposes specified in subsection (2) and the targets and actions in the relevant management plan.(6) The Secretary of State must maintain a publicly available list of relevant authorities who are to comply with subsection (5), publish a statement setting out instructions for relevant authorities, and review this list and statement at least every five years.(7) A management plan may not be made operational until it is reviewed by Natural England and approved by the Secretary of State.”Member's explanatory statement
This new Clause supplements the statutory purposes of protected landscapes by giving them additional purposes. Key parts of existing legislation, such as the Sandford Principle, would still apply. The amendment also places stronger duties on relevant authorities and updates requirements for protected landscape management plans, to ensure that all relevant authorities take more action to recover nature and tackle climate change within those landscapes. This implements key recommendations from the Glover Review of Protected Landscapes.

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[Lord Randall of Uxbridge (Con)]

My Lords, the Government have set themselves a tremendous triple task: by the end of the next Parliament, we must protect 30% of the UK for nature; also, by 2030, we must halt the terrible decline in British wildlife, which has been marching on for centuries; and, by 2050, we must end the era of fossil fuels and create a net-zero economy. I am proud of the role that this House played in setting the world’s first legally binding target to halt the loss of biodiversity during the passage of the Environment Act. I am proud of the role that my noble friend Lord Goldsmith and others played in securing a new global biodiversity framework with the same ambitious objectives.

The question before us today is whether we will make the land management reforms we need to deliver those three big promises. Serious improvements in land management are definitely needed. The abundance of priority species in England has declined by a staggering 82% since I was a boy and continues to decline by a further 2% a year. Instead of locking away carbon, 87% of English peatlands are still net carbon emitters. By some expert estimates, just 3% of the land is properly protected for nature. If we are going to turn things round, the UK’s great landscapes will be critical to our success.

Together, the national parks and areas of outstanding natural beauty cover a quarter of England. They are home to nine out of 10 threatened bird species and contain half of England’s priority habitats. From the chalk streams of the Chilterns, which we have discussed, to the blanket bogs of Dartmoor, they contain some of the rarest and most extraordinary habitats in the world.

Many of us probably imagine that our protected landscapes are already a backbone for biodiversity protection. Unfortunately, the truth is quite different. Nature in many protected landscapes is seriously deteriorating. Only 26% of sites of special scientific interest in national parks in England are in favourable condition, compared with a national average of 38%. In other words, our most important sites for biodiversity are often in worse condition inside protected landscapes than they are elsewhere. Critical habitats, such as peatlands, continue to leech out carbon as they are dried, overgrazed and degraded.

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[Lord Benyon (Con)]

I understand the campaigning point that the noble Baroness makes. That is perhaps for another occasion in this House; I am very happy to have that debate. I want to see more access but, over the next six years, the recovery of species in this country has to be our priority, as there has been a catastrophic decline. We have to work with people to give them more access where it is appropriate, but we also have to protect our countryside and rare habitats and make sure that hotspots of biodiversity are allowed to thrive, because the benefits from those will spill out right across our country.

Amendment 504GJC, so ably spoken to by my noble friend Lord Lucas, enables local communities, landowners and organisations to contribute directly to the 30 by 30 target through an internationally recognised structure—namely, the other effective area-based conservation measure. We understand the intentions behind this amendment. I provide reassurance that, as I said earlier, the Government are committed to protecting 30% of land for nature by 2030 and to developing the most appropriate approach to increasing and enhancing our protected areas and other land of value to nature.

We are working with partners across the country, including members of the public, the environmental sector, academics, farmers, landowners and the private sector, to deliver against this commitment. The nature recovery Green Paper sought views on our approach to 30 by 30. This included our plans to explore how land that is delivering for biodiversity outside of our designated protected areas can contribute to our 30 by 30 target. Many of the reforms explored in the Green Paper have fed into the Government’s environmental improvement plan, our delivery plan for protecting nature. The noble Lord is absolutely right to raise these points. More areas will be developed for nature as part of our reforms, and I very strongly believe that these should be included in our 30 by 30 calculations.

Government Amendments 467G, 504O, 509E and 515 address the requirement for Natural England to review the maps of open access land in their entirety at set intervals, with the first review currently due to be delivered by 2024-25 and subsequent reviews to be completed every 20 years following this date. These amendments allow Natural England to complete proportionate reviews, focusing on areas that were mapped incorrectly or have changed status, on an ongoing basis. While much open access land is already mapped correctly, some mistakes were made during the initial mapping process, and a first review of these areas is required to establish an accurate baseline. The amendments do not remove the first review deadline completely but move it to 2031 to allow for sufficient preparation of the review.

As I have said, we recognise the importance of enabling access to the countryside. That is why we have established 13 community forests, alongside substantial programmes to create more green open space and significantly expand national trails. We have also created and restored some 360,000 football fields of habitat since 2010. Our response to the Glover recommendations made clear that we will not consider whether CROW rights should be expanded until the review of the CROW maps is complete. Our stakeholders have been clear that reviewing the maps is a necessary first step before any consideration of expanding rights can be made. Once the first review is completed and a baseline established, the amendments will enable us to move to a continuous selective review system. Any changes in land use can be amended on the maps in good time rather than needing to wait up to 20 years for further review.

Amendment 467G inserts a new provision into the Countryside and Rights of Way Act 2000 regarding when Natural England must carry out reviews following the issuing of open access maps, and the matters that such a review must cover. The amendment also makes provision for regulations to set out the procedure on a review and makes consequential amendments.

I hope noble Lords will support these important amendments. A substantial amount of planning is required if we are to ensure that the reviewed maps are fit for purpose, so that we can then switch to a system of limited continuous review rather than the periodic reviews required at present. Amendment 467H would reduce, by three years, the time we have to make sure that the first review of maps is completed to the standard needed. The Government have tabled amendments which remove the scope for regulations to push back the deadline for the review, so I offer the noble Baroness assurance that this date will not move again.

Amendment 467I would insert a legal requirement to make regulations to enable subsequent reviews of the open access maps. Once the Bill has achieved Royal Assent, the Government intend to make regulations to enable a continuous review following the completion of the first review, which I hope will reassure the noble Baroness that the ability to do this will not be lost.

Amendment 467J would take the opposite approach of the government amendment by returning to the existing power to invoke the original appeals regime so that it applies to the review process. The Government feel it is important that we have the flexibility to fit the details of the appeal regime to the very different circumstances of the review, and therefore do not feel able to support this amendment.

[Lord Randall of Uxbridge (Con)]

My Lords, we have had a very interesting debate. I thank all those who have supported my amendment.

Because of the lateness of the hour I will not go into details, except to thank the noble Baroness, Lady Willis, for her speech, which was not just passionate but full of expertise, which shows the strength of this Chamber. I also thank my noble friend Lord Blencathra, not just for his almost complete support but for two ideas. One is tweaking. I am always up for tweaking and I hope my noble friend the Minister is too. My noble friend’s other suggestion involved a bottle of Highland Park. Perhaps we could get together and tweak this amendment with the Minister, and perhaps even his boss, so that we can go forward. Then, if the Government do not come forward with the appropriate amendment on Report, I assure my noble friend that I will return to it. With that, I beg leave to withdraw my amendment.

Amendment 387 withdrawn.