Amendment 103

Environment Bill - Committee (3rd Day) – in the House of Lords at 9:45 pm on 28th June 2021.

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Baroness Parminter:

Moved by Baroness Parminter

103: Clause 29, page 17, line 7, at end insert “and any other matters relating to the natural environment.”Member’s explanatory statementThis amendment seeks to ensure the OEP can offer advice to Ministers on matters they consider relevant to their remit.

Photo of Baroness Parminter Baroness Parminter Chair, Environment and Climate Change Committee, Chair, Environment and Climate Change Committee

My Lords, I shall try to be brief but I have two amendments in this group, Amendments 103 and 104, which relate to the Bill’s definition of “environmental law”. I am grateful for the support of my noble friend Lord Teverson.

Amendment 103 is about the matters on which the OEP can give advice to the Government, unasked. It is clear in the Bill that the Secretary of State can ask the OEP for advice about

“any proposed change to environmental law, or … any other matter relating to the natural environment” but, conversely, the OEP can give advice only on

“any changes to environmental law” and does not have the additional option to provide advice unasked on other matters relating to the natural environment.

This is important because of the definition of “environmental law” in the Bill. Indeed, it is important to look at what the Explanatory Notes say about what constitutes environmental law in Clause 45, because they seem to exclude some issues that I think most noble Lords would wish the OEP to be able to advise the Secretary of State on, unasked. Paragraph 381 of the Explanatory Notes—I think it is 381; I am getting to the stage where I need glasses at this time of the evening—on the definition of “environmental law”, states:

“Another example is planning legislation. Whilst provisions concerning environmental impact assessment and strategic environmental assessment are clearly concerned with environmental protection as set out in clause 42 … most other areas of planning legislation are not mainly concerned with environmental protection, and therefore will not fall within the definition.”

So, according to the Explanatory Notes, environmental law does not include the majority of planning legislation. That is really significant because we are expecting shortly what will no doubt be a very controversial new Bill on planning. According to the Explanatory Notes, the OEP can give advice only on environmental law, and planning is excluded from the definition of “environmental law”.

Equally—I have raised this in past sessions with the Minister, for which I am grateful—the Climate Change Committee can give advice on planning matters freely and without being asked, as it did so well in the case of the impact of the Cumbrian coal mine in driving a coach and horses through our net-zero targets. Again, as I read it, the definition in the Explanatory Notes seems to suggest that the OEP could not give such advice unasked. However, the Minister confirmed to me in those meetings, through his civil servants, that I am wrong in making that presumption. I have therefore tabled this amendment to give him the chance to put on the record tonight—I would like this to be said specifically—that the OEP can give advice, unasked for, on environmental law matters, including planning provisions and major planning applications. This needs to go on the record because, if it does not, there is a worrying lacuna and the only way to get around it is to accept my amendment, which basically would give the OEP the right to advise the Secretary of State on

“environmental law, or … any other matter relating to the natural environment”— a replica of the Secretary of State’s position in terms of asking the OEP for advice.

My second, slightly shorter, amendment also concerns the definition of “environmental law”, which is absolutely key in governing the OEP’s functions. This matters in the context of Amendment 114, which would remove some broad carve-outs for disclosing information—including the old chestnuts of defence and spending.

I have three issues with the definition of environmental law, which my Amendment 114 seeks to address. The current definition removes legislative provisions dealing with funding and resource allocation from the OEP. That means that the OEP cannot offer advice to the Government on these matters. We know that, in the past, there have been significant concerns over environmental health indicators flatlining due to funding. Indeed, in December last year, the issue was exposed in relation to funding cuts to the EA of 80%. But, as it stands, this definition removes those provisions of information about funding and resource allocation from the ambit of the OEP.

Secondly, again, the Armed Forces are outwith the ambit of the OEP and, as I made clear in the debate on Amendment 78, this is a worrying gap. It is not just about the enforcement of the law; we know that the CCC was able to offer advice to the Armed Forces on meeting climate goals and, again, the OEP would be unable to do this under the current definition in the Bill of environmental law.

Thirdly, the way the clause is drafted suggests that the OEP goes beyond matters overlapping with the Information Commissioner’s Office, which oversees and enforces public authorities’ compliance with the Environmental Information Regulations. It seems to me that that clause excludes from the remit of the OEP important obligations such as the disclosure duties of keeping registers and record keeping to uphold environmental law. An example of such an obligation is those under the Control of Pesticides Regulations, whereby users have to keep records of pesticides they use for five years and make them available to relevant authorities upon request.

In summing up, I would be grateful if the Minister could confirm whether obligations such as those would, under this clause’s definition, fall outwith the OEP’s scope. If there are genuine concerns about the overlap between the OEP and the ICO, why is there not a memorandum of understanding in the same way as has been proposed for the OEP and the CCC? That would seem to be a reasonable response, whereas what we have here is almost a sort of belt-and-braces approach, which goes beyond what is appropriate. So I hope that, in responding, the Minister will clarify the matters I raise in regard to Amendment 103 and ensuring that planning can be something on which free advice can be given, and that on Amendment 114 he will give some clarity about why the definition is as it is.

Debate on Amendment 103 adjourned.

House resumed.

House adjourned at 9.58 pm.