Amendment 121

Environment Bill - Committee (4th Day) – in the House of Lords at 7:55 pm on 30th June 2021.

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Lord Goldsmith of Richmond Park:

Moved by Lord Goldsmith of Richmond Park

121: Schedule 4, page 162, line 34, at end insert—“(2) The requirement in sub-paragraph (1) may be met by consultation carried out before this paragraph comes into force.”Member’s explanatory statementThis amendment provides that the consultation requirement in paragraph 8 of Schedule 4 may be met by pre-commencement consultation.

Photo of Lord Goldsmith of Richmond Park Lord Goldsmith of Richmond Park The Minister of State, Department for Environment, Food and Rural Affairs, Minister of State (Foreign, Commonwealth and Development Office)

My Lords, in moving technical government Amendment 121, I will also speak to similar government Amendments 122, 125, 126, 129, 132, 146, 147 and 151 in my name, which would allow for public consultations undertaken during this Bill’s passage to count towards the corresponding statutory duty to consult. These minor and technical amendments reflect the work that has continued while the Bill has been paused, including the launch of consultations that were recently undertaken—for example, on deposit return schemes, extended producer responsibility and consistent recycling collections.

Also in this group is government Amendment 278. The Bill establishes a number of functions that are to be exercised concurrently by Ministers of the Crown and the devolved Administrations. These enable us to provide for common UK-wide approaches in future, with agreement from the devolved Administrations. However, restrictions in Schedule 7B to the Government of Wales Act 2006 prevent the Senedd removing such a function of a Minister of the Crown without the consent of the UK Government.

The Welsh Government have raised concerns over the Senedd’s ability to end the concurrent arrangements in future in the light of those restrictions. The UK Government agree that the restrictions are not appropriate in these circumstances. Amendment 278 would therefore carve out the concurrent powers in the Bill from the consent requirements. This is in line with the approach taken to carve out concurrent functions in other enactments through the Government of Wales Act 2006 (Amendment) Order 2021.

I beg to move.

Photo of Lord Blencathra Lord Blencathra Chair, Delegated Powers and Regulatory Reform Committee, Chair, Delegated Powers and Regulatory Reform Committee

My Lords, I declare my environmental interests as in the register. However, today, I speak in my capacity as chair of the Delegated Powers Committee. I will speak to Amendments 148, 150, 160, 190, 191, 231, 243 and 250, which flow from the recommendations in our report on the delegated powers in the Bill. The changes that I am proposing are incredibly modest; the reason for that is that the Bill has satisfied my committee on the vast majority of delegated powers in it.

To set my proposed amendments in context, we said in our report that Defra’s delegated powers memorandum was “thorough and exceedingly helpful” and

“a model of its kind”.

This is a massive landmark Bill of 141 clauses, 20 schedules and eight different parts. It has 110 regulation-making powers but 44% of them are affirmative, which must be a record. We recommend that only one of those powers be upgraded from negative to affirmative. It has 17 Henry VIII powers but 15 are affirmative. One of my amendments seeks not even to delete one of the Henry VIII powers but merely to limit it.

I contrast what Defra is doing with the delegated powers in this Bill with one from BEIS that we reported on last Friday: the Advanced Research and Invention Agency Bill. It has a mere 15 clauses and deals with a single issue yet, as we have seen many departments do ever since they learned this ploy from the European Union (Withdrawal) Act, BEIS has tacked on a completely unnecessary Henry VIII power to amend any Act of Parliament since 1066.

So the Environment Bill is very good in delegated powers terms but my amendments seek to make it an absolute exemplar across the whole of government. Let us take the easy ones, which I am sure my noble friend can assent to just like that. Amendments 148, 150, 195, 231, 243 and 250 simply ask him to adopt exactly the same procedure that is already in Clause 24(4), which is to lay the published guidance before Parliament. Where guidance is statutory and has to be followed, we in the Delegated Powers Committee say that it should be approved by Parliament, but guidance that is merely intended just to guide does not need parliamentary scrutiny. The Bill therefore has a provision in Clause 24 that the Secretary of State can issue guidance to the OEP while subsection (4) says that the guidance must be laid before Parliament and published.

All that my amendments in this selection are doing is applying the same requirement to other guidance in the Bill, which is simply replicating what is already in Clause 24(4). We are not asking for it to be approved by negative or affirmative procedure, nor that it be debated or prayed against. All we seek is that it be laid, which means that it appears in our appendix to proceedings; Peers and MPs then know of its existence and can go and read about it if they wish. It is a courtesy to Parliament and, since my noble friend the Minister is a courteous man—as well as, if I may say so, an exceptionally knowledgeable environmental champion for all biodiversity in the UK—I am sure that he will be able to accept this group of amendments. That polishes off six of my nine amendments.

Amendment 160 suggests that the regulation permitting the recall of motor vehicles or parts of vehicles for environmental reasons should be upgraded from negative to affirmative. This power will be used against not individuals but manufacturers or distributers. It is the sort of power I wish we had had years ago so that we could take those millions of poisonous Volkswagens off the road. If this power is used, we are talking about thousands of vehicles and millions of pounds—possibly approaching billions if it were used in circumstances similar to those cheating diesel vehicles.

In those circumstances, I suggest that a negative procedure is just not good enough. Something this big and controversial needs the affirmative procedure. I can imagine MPs demanding debates and Urgent Questions on Statements, and the Government will be severely criticised if something of this magnitude is done with a negative procedure. Nor can it be argued that the power has to be used urgently and therefore the negative is needed. If it was an urgent safety matter, the “made affirmative” procedure could be used. There is nothing to be lost here by my noble friend the Minister agreeing to this.

Finally, we come to dear old Henry VIII. In many Bills, we have been scathing about the abuse of Henry VIII powers. Of course, they are necessary in many Bills, but they should be tightly circumscribed and, ideally, sunsetted. My committee was content with every Henry VIII power in this Bill except for one. This relates to Clauses 88 and 90, on the valuation of land drainage.

Noble Lords will know that the whole of the law relating to valuations and land drainage is contained in the Land Drainage Act 1991—not the most exciting of reads. There is no other law remotely involved. The Bill makes amendments to the 1991 Act and understandably has powers to make regulations to make “incidental, supplementary, consequential” provisions et cetera. Indeed, the Defra delegated powers memorandum justifies this by saying that this is

“in case the application of the new calculation requires incidental or consequential provision to be made to the LDA 1991, or to repeal specific provisions of the LDA 1991 which are made redundant as a result of the regulations applying in relation to all IDBs.”

What completely mystified my committee was that we accept the need for powers to amend the 1991 Act—the only Act mentioned and in contention—but the drafters here have widened the Henry VIII power to include every other Act of Parliament. We think that that is quite unnecessary and it blots the copybook of what are otherwise acceptable Henry VII powers—and there are not many times we say that.

My noble friend, I am sure, will want to accept the tweak to the Henry VIII power and the other amendments, but all I am asking him to do tonight is to take these away and consider them. I accept that he may have to consult other departments on this, but I hope that he will be as successful there as he was in getting biodiversity net gain extended to national infrastructure projects. That was an incredible success of the Minister and Defra. Getting others to sign up to that was an incredible achievement; I am sure that he will manage the same with these amendments if he requires other departments’ approval.

Photo of Baroness Garden of Frognal Baroness Garden of Frognal Deputy Chairman of Committees, Deputy Speaker (Lords) 8:00 pm, 30th June 2021

The noble Baroness, Lady McIntosh of Pickering, has withdrawn so I call the noble Baroness, Lady Humphreys.

Photo of Baroness Humphreys Baroness Humphreys Liberal Democrat Lords Spokesperson (Wales)

My Lords, I wish to speak to Amendment 278 in the name of the Minister. My contribution here will be a short one. I begin by thanking the Minister for the co-operation between his department and the Welsh Government in drawing up this Environment Bill. The Welsh Government recognised, long before the Senedd elections in May this year, that there would be no time in the Senedd’s timetable for them to introduce their own Environment Bill and they have been content for aspects of future Welsh policy to be delivered through this Bill. They believe that this allows for quicker delivery of Welsh policy and enables continued accessibility for users by continuing an English-Welsh legislative approach.

The more contentious aspects of the Bill have been those relating to air quality and environmental governance. These are both areas where the Senedd will legislate for Wales in their own Bills this term. The Bill contains powers for Welsh Ministers in relation to regulation of waste and recycling, and I believe there has already been some joint consultation on the use of those powers but, again, Welsh Ministers will be drawing their own conclusions.

The issue that had raised the concern of Senedd Members was that of the use of concurrent plus powers, where the Senedd would consent to the Secretary of State legislating for Wales in certain areas of devolved competence, but without being subject to the scrutiny of the Senedd. There were also concerns, I believe, that the transference of these powers would be irreversible. Amendment 278 addresses these concerns by the inclusion of a new clause which enables the Senedd to alter or remove the Secretary of State’s function relating to Welsh devolved matters, and to do so without the Secretary of State’s consent. I welcome this amendment and, again, I thank the Minister for the willingness to work together that has been evident in the relationship between the two departments.

Photo of Baroness Neville-Rolfe Baroness Neville-Rolfe Chair, Built Environment Committee, Chair, Built Environment Committee

My Lords, it is a pleasure to follow the noble Baroness, Lady Humphreys, again and to note a satisfied customer. I am afraid I rise to oppose Amendment 121 in the name of my noble friend the Minister. I have already explained that these provisions are wide-ranging, giving the Government powers to do goodness knows what, without making their intentions clear in this Bill. I worry about the precedent set in this sector and indeed for other sectors and for other Bills.

Even before the government amendments, the consultation provisions are rather weak. For example, paragraph 8 of Schedule 4 says:

“Before making regulations under this Part of this Schedule the relevant national authority must consult persons appearing to it to represent the interests of those likely to be affected.”

So, that is a lot of discretion. Will any proposals made under the powers in this Schedule also be published for public perusal and to ensure that any bugs are noticed before regulations are made? Consultation on regulations is vital and there always has to be a public as well as parliamentary stage to this. The department may well be unaware of wider impacts that public consultations and cost benefit can expose. I think of the damage done to the tourist industry when Defra closed down the countryside during the foot and mouth crisis. Sadly, it does not stop there. The Minister is now, in a string of amendments in this group, proposing that the consultation requirement may be met by precommencement consultation. I would like to understand this better. Which forthcoming regulations will be affected by this waiver and how can each be justified? My noble friend mentioned the deposit return scheme and some devolved matters. Is that the limit? Could this list be published and could the power be limited in time?

The Minister will have got used to the idea that I am concerned that his legacy regulations should be fit for purpose. I look forward to hearing from him on the justification for this change of approach on consultation. I am afraid that my initial view is that it cannot be justified and that it creates a deplorable precedent.

Photo of Baroness Hayman of Ullock Baroness Hayman of Ullock Opposition Whip (Lords), Shadow Spokesperson (Environment, Food and Rural Affairs)

I am very pleased that we are discussing consultation today, even if it is in a very small way. It was good to hear the speech of the noble Baroness, Lady Neville-Rolfe, and her request for more information on exactly what the proposals for precommencement consultation mean and what areas they will affect—because this is clearly an important issue.

Noble Lords may not be aware that I was an associate of the Consultation Institute, and it was my job to go out and consult local communities when major infrastructure projects were coming their way—so I have for many years taken a close interest in the Government’s consultation exercises. Some of them have been very good, and some of them have not. Consultation is now a fact of modern public life, yet it has all too often been mistakenly characterised as the art of listening. So, if noble Lords will indulge me, I shall share the definition used by the Consultation Institute, which may be something the Minister can pass on to his colleagues. It says:

“The dynamic process of dialogue between individuals or groups, based upon a genuine exchange of views, with the objective of influencing decisions, policies or programmes of action”.

I hope that the consultation and precommencement consultation proposed in the Bill mean not only that the Government will listen but that those who take the trouble to take part will genuinely be heard and will influence the outcome of this legislation in a positive way.

The noble Baroness, Lady Humphreys, talked about her and others’ concerns regarding how the legislation would affect Wales and the Senedd’s powers of scrutiny. As the Minister said in his introduction, Amendment 278 addresses these concerns, so I hope that the Government will continue to work with the Senedd in a positive way on these important environmental issues.

I thank the noble Lord, Lord Blencathra, for his introduction to his many amendments. It is important to look at his proposal to publish guidance, because it is important that we have transparency around that. It should be published or laid before Parliament when the issues are of importance. So I support him in that, because I believe that it is good practice, and his committee has clearly recognised that. I was also interested to hear that the noble Lord’s committee had suggested moving certain procedures from negative to affirmative. Having read his amendments, I note that these are clearly in very important areas concerning this part of the Bill, so we believe that the Minister should take a close look and listen to the committee. I thank the noble Lord for drawing my attention and that of this side of the House to those matters, and I look forward to the Minister’s response.

Photo of Lord Goldsmith of Richmond Park Lord Goldsmith of Richmond Park The Minister of State, Department for Environment, Food and Rural Affairs, Minister of State (Foreign, Commonwealth and Development Office)

I start by thanking my noble friend Lord Blencathra for his contribution to this debate and particularly for his committee’s hard work on the Bill. The Government very gratefully received the recommendations of the Delegated Powers and Regulatory Reform Committee report, and I assure the noble Lord that we are very actively considering them and will bring forward a response imminently. I thank him very much for his thoughtful comments and work on this. I also thank the noble Baroness, Lady Humphreys, for her kind words.

I turn to the questions put to me by my noble friend Lady Neville-Rolfe. We are bringing forward these amendments principally so that we can deliver some of the measures that we were talking about in the last debates—extended producer responsibility, the deposit return system, and so on—as quickly as possible. There is a demand for us to do so, and that is the purpose of the amendments.

The areas within scope are all parts of Clause 54. In particular, we are considering whether guidance should cover the circumstances where it may not be technically or economically practical or where there may be no significant environmental benefit to separately collect recyclable waste streams. In addition, we are considering whether it should cover the frequency with which household waste other than food waste should be collected and the kinds of waste that are relevant for the purposes of commercial or industrial premises. The guidance may make different provisions in relation to household waste, non-domestic premises and commercial and industrial premises. That is broadly the scope, but I am happy to follow up with more detail. I think that the reason—which is to accelerate some of these important initiatives—will be broadly supported by the House, so I would be grateful if my noble friend Lord Blencathra would not press his amendments.

Photo of Baroness Garden of Frognal Baroness Garden of Frognal Deputy Chairman of Committees, Deputy Speaker (Lords) 8:15 pm, 30th June 2021

I have received a request to speak after the Minister from the noble Lord, Lord Framlingham.

Photo of Lord Framlingham Lord Framlingham Conservative

My Lords, I am grateful to have the opportunity to say a few words after the Minister. I am also pleased not to disappoint my noble friend Lord Caithness, because I plan to say a word or two about that major infrastructure project HS2. It is fascinating that HS2 gets only passing references in a Bill on the environment. Perhaps this is because no one really wants to study the matter in detail and be forced to admit what a dreadful effect it is having, and will continue to have, on our environment and what a huge mistake it will turn out to be.

It is a tragedy that when the Government are doing so well on environmental issues—with this Bill, for example—and there is a huge increase in tree planting, a matter close to my heart, they should give their blessing to this unnecessary and destructive scheme. It is what is called a vanity project, serving little useful purpose, and will turn out to be the greatest manmade environmental catastrophe of our time. It will, without a shadow of a doubt, do far more damage to our countryside and people, and people’s lives, than it can possibly compensate for.

The scale of the damage is unbelievable and will include irreparable damage to many of our ancient woodlands. The very suggestion, which has been made, that they could be moved or replicated is, to anybody with the slightest understanding of these matters, quite ludicrous. It is hard to grasp the enormity of the operation. Its biggest site to date, at the southern end, covers 136 acres. It has just started boring a 170-metre long tunnel under the Chilterns that will take its massive boring machines, working 24 hours a day and seven days a week, three and a half years to complete. Already, there are problems with the local water supply, caused by the extent of the drilling through the chalk. I suspect that there will be many more unforeseen difficulties ahead.

I could go on to list all the environmental damage and despair that this project has caused, and will continue to cause, along its route. But I will not, partly because it is too depressing and partly because it will soon be obvious to everybody. I do not expect the Minister to accept, as I do, that HS2 should be stopped even at this late stage. But will he, at least, promise to watch the operation like a hawk and do all he possibly can to compel HS2 to minimise the damage it does?

Photo of Lord Goldsmith of Richmond Park Lord Goldsmith of Richmond Park The Minister of State, Department for Environment, Food and Rural Affairs, Minister of State (Foreign, Commonwealth and Development Office)

I thank the noble Lord for that final comment. I am very happy to give him my absolute assurance that I will do whatever is in the power of Defra to ensure that, whatever the outcome of HS2’s construction, nature is left in at least as good a position as it currently is. I believe that is the commitment it has made: no net loss, even though they are not in scope of biodiversity net gain.

Amendment 121 agreed.