Retained EU Law (Revocation and Reform) Bill - Report (1st Day) (Continued) – in the House of Lords at 8:30 pm on 15 May 2023.
The Earl of Caithness:
Moved by The Earl of Caithness
47: Clause 17, page 20, line 34, at end insert—“(3) In subsection (1)(b), developments in scientific understanding must be identified based upon regular reviews of the scientific evidence.(4) When undertaking a review of scientific evidence referred to in subsection (3), the relevant national authority must consider the methodological quality of the evidence, in terms of the extent to which all aspects of a study's design, data collection protocols and statistical analysis can be shown to protect against systematic bias, non-systematic bias, and inferential error.(5) Where regulations under subsection (1) constitute environmental law, the review of scientific evidence must also consider whether the evidence takes a sufficiently wide view of the ecological impacts.”Member’s explanatory statementThis amendment is to ensure that future regulations will be based on a proper assessment of the best science available.
My Lords, we move from powers to revoke or replace to powers to update. I am very grateful for the support that I have got from the noble Baronesses, Lady Willis of Summertown and Lady Bennett of Manor Castle, on this amendment. I express the apologies of the noble Baroness, Lady Willis, who was in your Lordships’ House earlier this afternoon but has had to go back to Oxford. She did very well to come up here for the time that she did, given the timetabling of the debate today.
There has been increasing concern that aspects of environmental policy have been and are being formulated based on evidence that is questionable in its methodology and therefore reliability. Our amendment seeks to remedy that by ensuring that future regulations will be based on a proper assessment of the best scientific evidence—and not only that, but the evidence needs to be assessed using standardised approaches to ensure robust outcomes.
Our proposed new subsection (3) would require regular reviews of the scientific evidence. There has been a lot of specious talk about the Government resiling on European standards on environmental laws, as if they were an unimprovable factor as enacted. Much more worrying, surely, is the automatic adherence to what is law without question, setting more concrete rules that damage the environment.
Back in 2004, a Cabinet Office paper stated that
“policy-makers need to understand the value of evidence, become more informed as to what evidence is available … and critically be able to appraise it”.
Indeed, the noble Lord, Lord Krebs, who I am delighted to see in his place, in one of our debates on the Genetic Technology (Precision Breeding) Bill, stated that
“scientists do not absolutely agree on everything”.
He went on to say that
“when there is a centre of gravity of opinion, there are always outliers. Sometimes those outliers turn out to be right and there are transformations”.—[
A good example of a recent transformation are the outcomes of interim results from a 20-year study by York University into moorland management, which the Government must take note of and study carefully. Policy must reflect broader approaches to conservation and be a living entity that can change as our knowledge of both ecological processes and individual contexts changes.
There is another point to make, which is that research must be allowed to continue. Recently, I read an example where the precautionary principle was being used as a reason to block research. The Game & Wildlife Conservation Trust wished to undertake research to provide more evidence but was refused permission to burn very tiny experimental plots on EU-designated sites because Natural England could not give consent, as the current habitat directive gives no exemption for experimental work or any sort of de minimis rules. In my view, the argument is both circular and not proportionate. Does my noble friend the Minister—I am delighted to see my noble friend Lord Benyon answering this debate—believe that there should be a presumption that scientific research is permitted? If not, how do we reduce the scientific uncertainty about sites or issues in question, and how can the Government legislate properly?
Proposed new subsection (4) asks that the quality of the scientific evidence is considered and based on standard principles. Not all scientific evidence is the same in quality or validity, and therefore reliability, which is important if directly impacting on decision-making. A standardised protocol would give confidence to all stakeholders involved, including the authors, and prevent unreliable evidence being given due weight, resulting in unintended impacts and wasted effort. For example, Natural England guidance on how to systematically review evidence recommends categorising the different types of study from 1, the strongest scientific studies based on meta-analysis and randomised control trials, to 4—the weakest, as based on expert opinion. This and its evidence standard underpin its approach of putting the best available science at the core of its decision-making. Will that approach be followed throughout government?
The third part of our amendment is proposed new subsection (5), which requires that the review of scientific evidence takes a sufficiently wide view of ecological impacts. This will be frustrating for many well-meaning NGOs focused on one particular interest or objective, whose rationale for their relentless pursuit of that occasionally emotional objective risks upsetting the delicate balance in nature, with unintended consequences.
Research outcomes are rarely black and white. The complexity surrounding evidence-based conservation is emphasised by the Conservation Evidence database website, which states:
“We do not make recommendations. This is because it is difficult to give evidence-based conservation advice that is appropriate for every context”.
Consequently, policy that legislates for binary outcomes is likely to result in unintended consequences. This is particularly so for the environment, where underlying conditions can change within a few metres, if not centimetres. I ask noble Lords to think of when they last walked on moorland, woodland or farmland.
Wrapped up in our amendment is the well-recognised problem of keeping policymakers and their advisers up to date. It would be useful to have a mechanism that opened the influencing to a broader spectrum of research bodies. Would my noble friend consider whether there could be a process for academics or research institutions to provide, for example, synthesised papers rather than primary research, using a standard template to inform government? I appreciate that there are scientific advisory committees and external policy advisers, but, if you ask the same people, you get the same answers. That is an easy trap into which the Government and their advisers often fall.
These are three simple subsections to be added, hopefully, to Clause 17. I hope my noble friend will give them favourable consideration, because it is very important that we get any laws relating to the environment as right as possible. I beg to move.
My Lords, I must inform that House that, if Amendment 48 is agreed to, I will not be able to call Amendment 49 due to pre-emption.
My Lords, I will speak to the cross-party Amendment 48 in my name and those of the noble Baronesses, Lady Parminter and Lady Hayman of Ullock, and the noble Lord, Lord Duncan of Springbank. As always, it is a great pleasure to follow the noble Earl, Lord Caithness; he gave me a namecheck in his speech which I hope to add to my CV, so that for my next job application I can say, “As quoted by the noble Earl, Lord Caithness”.
I support in large part what he said about the importance of rigorous scientific evidence to underpin policy—he referred to the environment, but I would say more broadly. I will add a note of caution from my personal experience. As many noble Lords will know, I was responsible for instigating the randomised badger culling trials, the so-called “Krebs trials”, which were meant definitively to determine whether killing badgers was a good way of controlling bovine tuberculosis. The trial was probably the largest ecological experiment ever done in this country; it did produce results, but it did not settle the arguments or the policy. So science has an important role to play, and I support the noble Earl’s amendment, but we must recognise that political decisions come in as well.
I turn now to Amendment 48. I want to keep it brief so I will say what it is not and what it is. It is not an attempt to block any change. It is also not an alternative to the earlier proposals that came from my noble and learned friend Lord Hope of Craighead to involve Parliament in future decisions. It is not either of those. It supports the Government in their declared ambitions for the environment and for food. In doing so, it also ensures that the Government make good decisions rather than bad decisions. The amendment is about protecting the environment and consumer interests in relation to food.
These two areas—food and environment—are crucial to the REUL Bill, as between them they account for approximately half of the 4,900 regulations that come under REUL according to the current dashboard. At its board meeting in December 2022, the Food Standards Agency noted 800 items related to food and feed. The REUL dashboard reports about 1,700 items related to Defra, most of which concern environmental protection. These two areas are also crucial because of public concern. You have to think only of sewage in rivers, outbreaks of food-borne illness or GM foods to realise that these areas—environment and food—resonate with the public. These two areas also attracted a great deal of debate from your Lordships in Committee.
The amendment that I have proposed has three elements: first, non-regression—which we have already heard about from the noble Lord, Lord Lucas, and the noble Baroness, Lady Bennett of Manor Castle. Any future changes, according to Amendment 48, should not reduce or water down current levels of environmental protection or food safety standards. Nor should they contravene any international agreements to which the UK has committed.
My second point is expert input. This resonates with the amendment in the name of the noble Earl, Lord Caithness. Regulations should not be changed without consulting the relevant experts. These should include the Office for Environmental Protection, the Food Standards Agency and their cognate bodies in Scotland.
The third element is transparency. The amendment would require the Government to publish a report showing how any changes do not reduce environmental or food protections and what advice was received from the experts consulted. As a further transparency measure, the amendment also requires the Food Standards Agency, together with Food Standards Scotland, to report on the impact of any changes resulting from the implementation of this Bill on food safety and other consumer interests in relation to food.
The proposals in these three areas—non-regression, expert advice and transparency—are totally in line with the Government’s own commitments. They have said over and over again that they do not want to weaken environmental protection or compromise food safety and standards. The noble Lord, Lord Benyon, who I am delighted to see is going to respond to this grouping, has himself said that on more than one occasion in your Lordships’ House. This amendment simply formalises these commitments in the Bill. As we heard earlier, Clauses 13, 14, 16 and 17 leave Ministers a great deal of discretionary power. While, of course, we totally trust current Ministers to keep their word, who knows who will be in charge in future? This amendment will ensure that, in the future, Governments will build on the good work that has been done up to now and the promises that have been made.
Outside this House, who supports this amendment? Let me give noble Lords some examples. I asked the Food and Drink Federation whether it supported the food parts of this amendment. The FDF, with more than 1,000 members ranging from global brands to innovative start-ups, represents the UK’s largest manufacturing sector. It says in writing that it is happy to be quoted as supporting this amendment. If the Government wish to be business friendly—and I have heard that said—here is a good place to start: accept an amendment that has the weight of nearly half a million jobs behind it.
Equally, non-regression of environmental protections is supported by the Government’s statutory advisers, the Office for Environmental Protection and the Climate Change Committee, which both said in recent written statements that it is important that the REUL Bill includes a non-regression clause.
The amendment applies to the whole of the UK, and in that context it is noteworthy that the Scottish Government have also written to express their support for Amendment 48.
I hope that in this brief introduction I have said enough to convince your Lordships that this amendment is sensible, proportionate and fully supportive of the Government’s declared commitments on the environment and food. Indeed, I cannot see why on earth the Government would not accept it, and I very much look forward to the Minister agreeing with me. However, if that agreement is not forthcoming, and recognising from Committee that there was widespread support from across the House for the areas of environmental and food protections, I will wish to test the opinion of the House.
My Lords, I have the third amendment in this group, Amendment 49. Colleagues will have detected that there is a considerable overlap with the amendment in the name of the noble Lord, Lord Krebs, and I was proposing to withdraw my amendment formally in favour of his. He has moved that very ably, and therefore I need not repeat most of the arguments he made.
It is very important, now we have the Joint Committee procedure and all the other changes that the amendments in the name of the noble and learned Lord, Lord Hope, have built into the Bill, that we give some guidance as to how they are to proceed. In relation to issues of the environment and food, the amendment in the name of the noble Lord, Lord Krebs, would make it clear how in part they are to receive guidance on carrying out that function.
I will add just one point to the considerations your Lordships have already heard from the noble Lord, Lord Krebs. These areas are very important for our trade agreements. Environmental standards increasingly appear in our trade agreements, particularly with the EU but with other countries as well. Therefore, any regression of those standards needs to be clear not just from an environmental but from a trade point of view. It is absolutely clear that this must be the case for food. We have an important food manufacturing and agricultural industry, which needs to ensure that the standards to which it produces are the same as or equivalent to those of our trading partners. If that is not the case, some of our best trade agreements will be precarious. The references to international standards and international bodies of advice are very important for the proposed Joint Committee to follow. I therefore hope that those considerations can be taken into account by the House and that the Government will accept the amendment in the name of the noble Lord, Lord Krebs.
My Lords, I am very uncertain how the wording of this amendment works. Is a regulation the whole package of regulations that is submitted to this House or each individual regulation? If a regulation makes changes so that an old provision is swept away and the new one replaces it, that sweeping away of an old provision is a diminution, but there does not appear to be a mechanism for balancing it with the better regulation that follows. If a regulation benefits one species but hurts another, how is that dealt with here? If we protect badgers more so that there are fewer hedgehogs, I do not see how the wording works. Most of all, it seems that if the Government want to keep Clause 16(5) they must want this too, so I shall support the noble Lord, Lord Krebs.
It is a great pleasure to follow the noble Lord, Lord Lucas, because that is exactly the point I was going to begin on. If you are to keep Clause 16(5), you absolutely need to have this. As my noble friend Lord Fox says, the importance of this amendment is that it takes the sting out of Clause 16. If we want to protect the environment for the future, and our food standards, as was so well articulated by the noble Lord, Lord Krebs, this amendment is absolutely fundamental.
I do not want to add much more to what the noble Lord said, because he introduced it so expertly, but we on these Benches would add one other reason why we support it. It is critical that the public have confidence in environmental legislation, particularly at a time like now. If they see the Government not prepared to sign up to a non-regression clause—which is, as has been said, what the Minister says they want—they will be left with questions. We need them to be reassured that our environment is in the best possible hands, and the only way the Government can prove that in the Bill is to allow this non-regression clause.
The point about consumer confidence is vital, and it plays into the point mentioned in the amendment, which is that we need to maintain our international obligations, including the Aarhus convention, which guarantees people a fundamental right to environmental justice, and others, such as the Berne convention, and I am sure that other noble Lords, such as the noble Baroness, Lady Young, will talk to those points. Keeping to our international agreements and reassuring the public that our environment is now in safe hands is more important than ever, and this amendment does that.
My Lords, I realise that the hour is late and I do not intend to detain your Lordships long. I speak to Amendment 48. It is a cross-party amendment and this morning, when I began to consider this, I typed up some notes, which I have—but I do not have my glasses and I typed in a font far too small. I feel I am now a speaking metaphor for what the amendment represents. We have to be careful that we are looking not just at the fuzziness of the whole issue but at the detail. The noble Lord, Lord Krebs, ably set out why it is important.
This is a non-regression amendment. We are where we are right now, and we are content with that—if anything, we should be going further, but let there be no step backwards. The important statements in this amendment are very clear: let us accept what we are able to achieve, look at the international standards by which we must be judged and consider how to do that correctly.
I am pleased to see the Minister before us. It is not my intention or desire to vote against the Government, but these things occasionally happen. I think he can give us some words of comfort this evening about how we might help us to be able to understand the non-regression element of each of the matters we have touched on so far.
I will speak no further, other than simply to say that the amendment establishes and stabilises what we are about. We are a nation with clear ambition in this area, and we have done good work. Let us not let that be lost; let us not regress.
My Lords, having attached my name to Amendment 47 in the name of the noble Earl, Lord Caithness, and the noble Baroness, Lady Willis, I shall make just a couple of points on that. I stress Amendment 48, to which the Green group would have attached our names had there been space, and the point made by the noble Lord, Lord Krebs, that this is writing into the Bill what the Government tell us again and again, as they have for years, they want to achieve. It is simply delivering the Government’s expressed desire.
I want to make just three points on Amendment 47. There is some important terminology, with which I suspect the noble Baroness, Lady Willis, may have had something to do. That refers to the methodological quality of the evidence. There is increasing awareness in the scientific community of the need to look at the problem of publication bias: the probability that a scientific study is published is not independent of its results. That is just one way in which we have real problems with the methodology of what has been published and the Government have considered in the past, to which the amendment is to some degree addressed.
Proposed new subsection (5) mentions
“a sufficiently wide view of the ecological impacts”.
I will take a case study of this. Scientists are increasingly concerned about the combined cocktail impact of pesticides, plastics and pharmaceuticals together in the environment. I point the Minister to a European report by the CHEM Trust, Chemical Cocktails: The Neglected Threat of Toxic Mixtures and How to Fix It and, independently occurring, a launch this month in the UK of a report from the Wildlife and Countryside Link with the Rivers Trust and UK Youth for Nature, Chemical Cocktails: How Can We Reduce the Toxic Burden on Our Rivers? The scientific view taking that overall wide ecological view is increasingly being recognised as crucial, and massively understudied.
The final point I want to make is that Amendment 47 is reflective of something that I am increasingly finding: groups of scientists—including established scientists whom you might expect that have a very good route into the Government—are coming to me and saying, “Please advise us on how we can get through to the Government to make sure that our scientific advice and discoveries are acted on”. There is real feeling in the scientific community that there has been a breakdown in communication and consideration from the Government in terms of the current science. This amendment seeks to address those issues.
My Lords, I shall be very brief. I just want to give particular support to Amendment 48, to which I have added my name. We cannot allow the Bill to weaken environmental and food safety standards. We know that Defra has by far the largest share of affected regulations of any department, so the Bill really will have significant implications for environment and food safety law-making unless it is done well.
I will not repeat the reasons why we need these amendments, but what has come across very clearly is the fact that there is widespread and strong support for the environmental non-regression principle.
Importantly, Amendment 48 would give transparency but also legal substance to the warm words of the Minister, as the noble Lord, Lord Krebs, mentioned. On day 2 of Committee, the Minister said that the Government are committed to maintaining high environmental standards and that he wanted
“to see … standards improve in future”.—[
I absolutely believe that is the case but, as a matter of law, the Bill provides no assurances or protections and cannot bind the hands of future Ministers. It is absolutely critical that these assurances and protections are in place in the Bill because, without a non-regression principle in law, they simply are not there.
On that basis, if the noble Earl, Lord Caithness, wishes to test the opinion of the House, he will have our support.
My Lords, I am grateful for a really interesting debate. Before I begin to address the amendments in this grouping, I say that I know that there was some discussion earlier today regarding Defra’s plans for water quality, particularly the Bathing Water Regulations and the water framework directive. I take this opportunity to reassure noble Lords that neither of these pieces of REUL is on the schedule to this Bill and Defra has no intention of repealing either of these pieces of important legislation. The noble Baroness, Lady Bakewell of Hardington Mandeville, raised this issue, and I absolutely give them that assurance.
Under this Government, we have only strengthened our legislation on water quality. In April, we published our new integrated plan for water, which marks a step change in how we manage our waters. It looks at both water quality and water resources together. We completely understand people’s concerns about our rivers, lakes and seas and the pressures that they face. This plan is our response. In the plan, we set out how we will streamline our water policy and legal framework; this includes the water framework directive 2017. We consider that there are opportunities to improve the regulatory system through reviewing the implementation of the water environment regulations 2017 in order to improve water outcomes on the ground while retaining our goal to restore 75% of water bodies to good ecological status.
I turn to Amendment 47, moved by my noble friend Lord Caithness. This amendment would introduce specific statutory requirements on Ministers when deciding what updates may be appropriate under the power to update in Clause 17 in the light of scientific developments. The amendment would also require that, where Ministers intend to exercise the power on legislation relating to environmental law, the review of scientific evidence must consider whether the evidence accounts for the ecological impacts. I say this to my noble friend: the power has purposely been drafted in this way both to allow for broad technical updates and to ensure that it captures the wide range of REUL across a variety of policy areas. We cannot predict the nature of scientific developments or technological changes to which REUL may be subject, nor the changes that might be appropriate in those instances in future.
I totally agree with my noble friend’s point about outliers. As he said, we had this debate during the passage of the Genetic Technology (Precision Breeding) Bill. I constantly challenge the scientific advice that I receive in Defra to make sure that we are not creating the opposite of diversity or a sort of monogamous view of scientific progress. Outliers are the best challenge to that occasional tendency to be too absorbed in one particular group of views. This has been very eloquently described by notable international conservationists such as Allan Savory. That ability to have only research that is peer-reviewed sometimes requires those commissioning science to look more broadly. That is what we try to do, and I assure my noble friend that his points are well received. However, I gently suggest that placing statutory requirements on Ministers in the use of this power, including the requirement for scientific updates to be based on the latest evidence, is simply not necessary.
First, public bodies are already under public law duties to act reasonably and to consider relevant factors in decision-making. Secondly, Ministers will need to be reasonable and consider the relevant scientific evidence when evaluating whether updates, and what updates, may be appropriate. Provided a Minister acts reasonably and considers the relevant factors, it is ultimately for them to decide what is considered an appropriate amendment in light of a change in technology or development in scientific understanding.
The UK is a world leader in environmental protection and, in reviewing our REUL, we want to ensure that environmental law is fit for purpose and able to drive improved environmental outcomes. Furthermore, this Government have been clear throughout the passage of the Bill that we will uphold our environmental protections. We remain committed to our ambitious plans set out in the net zero strategy, the Environment Act and the Environmental Improvement Plan 2023, which sets out the comprehensive action we will take to reverse the tragic decline in species abundance, achieve our net-zero goals and deliver cleaner air and water. The provisions in the Bill will not alter that. I therefore suggest that the requirements of this amendment are not necessary.
The proposed new clauses in Amendments 48 and 49, tabled by the noble Lords, Lord Krebs and Lord Whitty, respectively, establish a number of conditions relating to environmental protections and food standards that Ministers must meet when intending to use the powers under Clauses 13, 14, 16 and 17. They include satisfying a range of conditions in the amendments so that environmental and consumer protections relating to food safety and labelling will be maintained and that the proposed new regulations do not conflict with a specific list of existing international environmental agreements. They also introduce a new procedural requirement which Ministers must meet to be eligible to exercise the powers. This includes seeking advice from relevant stakeholders and publishing a report addressing specific points concerning environmental and consumer protections for the new regulations.
Amendment 48 seeks to insert a new subsection into Section 4 of the Food Standards Act 1999, introducing a requirement for the Food Standards Agency to include in its annual report an assessment of the impact of the delegated powers on areas of concern to consumers relating to food, under that section of that Act. These new and broad-ranging provisions would have a severe impact on the Government’s ability to use the Bill to legislate and deliver on our environmental and food goals, due to the resource-intensive nature of the conditions proposed.
Moreover, the list of relevant international obligations set out in the amendment is far from comprehensive and would become rapidly outdated in the context of ever-evolving international legislation. The delegated powers in the Bill are not intended to undermine the UK’s already high food standards, nor will they impact the UK’s status as a world leader in environmental protection. Indeed, this Government are committed to promoting robust food standards nationally and internationally, so we can continue to protect consumer interests, facilitate international trade—a very good point made by the noble Lord, Lord Whitty—and ensure that consumers can have confidence in the food they buy. The UK has world-leading standards of food safety and quality, backed by a rigorous and effective legislative framework.
Under the Food Standards Act 1999, the FSA already has as its core statutory function the objective of protecting public health from risks that may arise in connection with the consumption of food, including risks caused by the way it is produced or supplied, and protecting the interests of consumers in relation to food. The Bill and the powers in it do not change that. Accordingly, the FSA would already have to consider the effect on public health of any legislation that it would ask the relevant Minister in its sponsor department, the Department of Health and Social Care, to make in relation to food before that legislation would have effect. Alongside this, Defra maintains a well-established set of relationships with the agrifood sector, broadly aimed at upholding the sustainability, productivity and resilience of the sector. This includes representation, from farm to fork, of around 150 major food and drink companies and trade associations, as well as a range of industry CEOs and senior figures, to discuss strategic opportunities and challenges facing the agrifood chain.
We also want to ensure that, in reviewing our REUL, environment legislation is fit for purpose and able to drive our positive environmental outcomes. I take the point very eloquently made by the noble Baroness, Lady Hayman, but this is much more than warm words: we have written into law our environmental protections, our ambitions for reversing the decline of species and, in very strict food legislation, on the health of food.
The REUL that we are revoking as part of the schedule to the Bill is obsolete, expired, duplicated or no longer relevant to the UK. It is not required to uphold environmental protection. For example, around half of fisheries REUL can be removed as it is no longer relevant, has expired or relates to areas we do not fish in. For example, I am sure all noble Lords will agree that REUL setting fishing opportunities for anchovy in the Bay of Biscay for the 2011-12 fishing season, which has now expired and is no longer applicable in the UK, is pointless to have on our statute book. Therefore, the proposed conditions on food standards and environmental protections are simply unnecessary. The reforms these powers will enable are vital to allow the UK to drive genuine reform and seize the opportunities our new status allows.
I enjoyed being on the same side as the noble Lord, Lord Krebs, on previous legislation. I hope that my attempt at honeyed words might have got him onside, but we will have to see how that goes. There are two reasons, by and large, why Governments resist these kinds of amendments: first, they are not necessary—there is already law to provide for the measures the amendments seek—and secondly, they are too burdensome. For these two amendments, I submit, both those factors come into effect: they are not necessary and they are too burdensome, so I ask that they not be pressed.
My Lords, I am extremely grateful to all noble Lords who took part on my amendment, and those from the noble Lords, Lord Krebs and Lord Whitty, because we have had a very useful debate. I strongly agree with the noble Baroness, Lady Parminter, that the public must have confidence in our environmental laws. That is the basis of how we should go forward, and I think the Minister tried hard to reassure us that that was the case. I need to read exactly what he said; he said some helpful things in reply to my amendment. I just wish that the other Ministers in Defra took exactly the same view as he did with regard not only to regulations but new legislation. However, I am grateful for what he said, and I beg leave to withdraw my amendment.
Amendment 47 withdrawn.
My Lords, if Amendment 48 is agreed to, I cannot call Amendment 49 for reasons of pre-emption.