Clause 43 - Meaning of “environmental law”

Environment Bill – in a Public Bill Committee at 10:30 am on 10th November 2020.

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Photo of Alan Whitehead Alan Whitehead Shadow Minister (Department for Business, Energy and Industrial Strategy) (Energy and Climate Change), Shadow Minister (Business, Energy and Industrial Strategy) 10:30 am, 10th November 2020

I beg to move amendment 127, in clause 43, page 26, line 6, leave out “mainly”.

This amendment ensures that any legislative provision that concerns environmental protection is included in the definition of “environmental law”.

Clause 43 concerns itself with one word, but, as I think hon. Members will appreciate, it provides, as is the case with many Bills, the crucial underpinning of a particular part—namely, those clauses up to clause 43. In other words, it defines the words we have discussed this morning and on other occasions. Although it may appear that a great deal of debate is focused on very small parts of the Bill—on one or two words—it is important to pay attention to them and to get this right. I appreciate that we may appear not to be making the progress we would otherwise want to make, but this is essential for the overall progress of the Bill. I can reveal to the Committee that I have discussed with the Government Whip exactly how much progress we can make today, and we need to ensure that it is commensurate with getting the Bill through in good order overall. I assure hon. Members—and, indeed, you, Mr Gray—that we want to make good progress and get the Bill through in good order and in good time. I hope that what we do this morning will aid rather than impede that progress.

Clause 43 concerns itself with the meaning of environmental law. Subsection (1) states that it

“is mainly concerned with environmental protection, and…is not concerned with an excluded matter”.

Subsection (2) defines excluded matters. We are concerned about the word “mainly”. We think that legislation that defines the meaning of environmental law should be “concerned with” environmental protection, not “concerned mainly with” with environmental protection. The use of that word implies that a number of other things could be construed as not being concerned with environmental protection. Logic suggests that the inclusion of the word “mainly” admits the possibility and, indeed, the likelihood that there are things outwith that particular definition.

Subsection (2) refers to excluded matters and I think we will discuss some of those in a future debate. Nevertheless, assuming it stands, it defines what is outwith the concerns of environmental protection. The Bill itself puts forward the things that are excluded from consideration, while subsection (1) uses the word “mainly”, which adds another area of uncertainty regarding what is and what is not excluded.

Photo of Ruth Jones Ruth Jones Shadow Minister (Environment, Food and Rural Affairs)

Does my hon. Friend agree that the term “mainly concerned” is ambiguous, with no clear legal meaning? Indeed, Dr David Wolfe QC drew attention to this issue in his written evidence to the pre-legislative scrutiny of the draft Bill.

Photo of Alan Whitehead Alan Whitehead Shadow Minister (Department for Business, Energy and Industrial Strategy) (Energy and Climate Change), Shadow Minister (Business, Energy and Industrial Strategy)

My hon. Friend is a mine of carefully culled information from previous sittings of the Committee, including the evidence sessions, which underline the points we are making this morning. She has set out that this is not just our concern; it is widely shared outside this Committee Room, and for that reason it deserves additional consideration.

Our case is that the word “mainly” should be removed and that the definition of environmental law should be that it is “concerned with environmental protection”. Subject to concerns that we may have about some of the areas listed under excluded matters, the fact that subsections (1) and (2) sit together should provide a very clear line of discussion about the meaning of environmental law as far as legislative provision is concerned.

Photo of Rebecca Pow Rebecca Pow The Parliamentary Under-Secretary of State for Environment, Food and Rural Affairs

I support the broad approach to defining environmental law, which has always been our intention with clause 43. We also need to ensure, however, that the definition is practical and workable, particularly for the OEP. The definition must not give the OEP such a wide remit that it is unmanageable or intrudes into areas where it would be inappropriate for the OEP to act or to be expected to act.

The OEP’s principal objective is to contribute to environmental protection and the improvement of the natural environment, as we have said many times. We must have a definition of environmental law that safeguards that objective by making it clear to all parties that the OEP’s focus will be on legislation for environmental protection and improvement. Removing the word “mainly” could bring a large amount of legislation into the OEP’s scope—that is not unlike our discussions about heritage and the other legislation connected to that—and would risk diluting the OEP’s effectiveness or diverting its resources to matters that could be more adequately dealt with by another body.

Many areas of legislation can be considered to be concerned, to a small degree, with environmental protections, despite being mainly concerned with something else. That is a good point, and I will give one small example: road traffic speed limits are mainly concerned with road safety, but they also have implications for the environment. We do not think that the OEP should have a remit to enforce speed limits.

Photo of Rebecca Pow Rebecca Pow The Parliamentary Under-Secretary of State for Environment, Food and Rural Affairs

I think that is quite a good example, but the hon. Member for Cambridge might come up with another.

Photo of Daniel Zeichner Daniel Zeichner Shadow Minister (Environment, Food and Rural Affairs)

I will not come up with a counter-example, but I think many would draw a very different conclusion from the Minister’s example. I am not a lawyer, but we are advised that the term “mainly” is mainly ambiguous in law. Others have suggested that “related to” would be a better term. Why have the Government chosen “mainly” rather than “related to”?

Photo of Rebecca Pow Rebecca Pow The Parliamentary Under-Secretary of State for Environment, Food and Rural Affairs

Just like the hon. Gentleman, we have also taken a great deal of advice and have used “mainly” for the reasons that I have set out. Although the OEP could still prioritise, it would be unhelpful for stakeholders were the OEP to be concerned in a huge range of issues that have only minor or tangential links to environmental protection or improvement.

It is important to note that the definition is already broader than it might initially seem because it applies to individual legislative provisions, so it could be part of a wider Act or statutory instrument. That means that even if most of an Act or statutory instrument is not mainly concerned with environmental protections, any specific provisions that are considered environmental law would come under the OEP’s remit. It is also worth noting that the term “mainly” is not prescribed in the Bill. The OEP and public authorities will therefore be able to interpret it in accordance with its normal—another legal word—meaning.

I appreciate the intentions of the hon. Member for Southampton, Test, but the amendment is not necessary or appropriate because the existing definition is sufficiently broad and balanced with the need to maintain the OEP’s focus on the protection and improvement of the natural environmental. I therefore ask him to withdraw his amendment.

Photo of Alan Whitehead Alan Whitehead Shadow Minister (Department for Business, Energy and Industrial Strategy) (Energy and Climate Change), Shadow Minister (Business, Energy and Industrial Strategy)

I thank the Minister for her response—she had a good go at it. We will not withdraw our concern, but as the Minister has given some reassurance about how the term “mainly” might be interpreted and has indicated that some thought was given to that prior to the Bill’s drafting, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Photo of Deidre Brock Deidre Brock Shadow SNP Spokesperson (Wales), Shadow SNP Spokesperson (Environment, Food and Rural Affairs)

I beg to move amendment 115, in clause 43, page 26, line 10, leave out paragraph (b).

This amendment removes the exceptions for legislative provisions relating to armed forces and national security matters from the definition of ‘environmental law’ for the purposes of the scope of the OEP’s functions.

I thank the Minister for her kind words and would like to correct myself slightly because I did not welcome her back to her place earlier. I am very pleased to see her and am glad that she has recovered.

The armed forces are potentially among the biggest polluters. The evidence from Scotland demonstrates that there has to be some oversight of the potential for environmental damage. I mentioned that previously in respect of the issues that have arisen. The nuclear bases on the Clyde do some work with SEPA—the Scottish Environment Protection Agency—and local authorities to alert them to some instances, but not all. Even those scant measures are the subject of voluntary agreements rather than obligations or regulatory oversight. No information is forthcoming, however, on the rest of the defence estate across Scotland. I imagine there is nothing about the estates across England either.

We know that the MOD does environmental assessments because it told me so in answer to written questions, but that information is kept secret. That is not good enough. We all have to play our part. As I have said, no individual Department should be completely excused from shouldering that responsibility. The phrase “so far as is reasonably practical” is used in a lot of legislation from which defence and our armed forces are exempt, and it could be too easily used as a get-out when that suited. It is time for that loophole to be removed, and for oversight to be in a place whereby such activities could receive independent and robust scrutiny that—while allowing for sensitivities around national security and similar matters—ensured that activities could be monitored satisfactorily. I look forward to the Minister’s response.

Photo of Rebecca Pow Rebecca Pow The Parliamentary Under-Secretary of State for Environment, Food and Rural Affairs

I thank the hon. Lady for her contribution. We heard something about the issue with respect to previous clauses as well, and we recognise the intention behind those. Protecting our country is fundamental, which is why exemptions for the armed forces and national security are maintained. Any legislation that could be covered by those exemptions would concern highly sensitive matters that were vital to the protection of our realm, so it is appropriate to restrict the OEP’s oversight of and access to information in such areas.

We want to make it clear, so that there is absolutely no doubt, that legislative provisions relating to these matters cannot be environmental law, and so cannot fall within the OEP’s remit. Legislative provisions concerning national security would cover matters such as the continuous at-sea nuclear deterrent and other policy areas vital to the protection and defence of the UK, which are of the utmost importance.

The single most important thing that we do is protect our people. It would not be appropriate for the OEP to have jurisdiction here, where its intervention could hinder vital work. We expect that such specialist matters would also be outside the OEP’s areas of expertise. As such, the OEP would not be appropriately qualified to enforce such issues. Legislative provisions concerning the armed forces would cover matters related to personnel and staffing that link to defence capability and matters such as the Armed Forces Act. It would not be appropriate for the OEP to have a role overseeing the legislation.

To be clear: the exemption does not mean that public authorities such as the MOD or any of the armed forces will be exempt from scrutiny by the OEP in respect of their implementation of environmental law—for example, a lot of MOD land has site of special scientific interest designation; it simply means that legislation concerning the armed forces or national security will be excluded from the OEP’s remit. Much of the defence land is protected land with SSSI designation. The OEP will still be able to hold public authorities accountable on that land for their statutory duties concerning the protection of the site, as the relevant legislative provisions will not be covered as regards national security or the armed forces.

The Scottish Government have, I note, taken a similar approach on the issue in section 10(3)(a) of the UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill 2018. They also have a number of exemptions that are not unrelated to this. It is worth noting that the Ministry of Defence has its own environmental policies, and it went into that in some detail last week. It does a great deal of good environmental work. I should mention the stone curlew project I visited, but there are many others where it is doing excellent work for protected species and habitats. It prides itself on that, and has a strong record of delivering on those commitments. On the whole, its SSSIs are in pretty good condition, so all credit to the MOD.

I know that the hon. Member for Edinburgh North and Leith has done a lot of work in this area, and it is something she has talked about from the beginning. I thank her for raising this, because it gives us a chance to make the argument. Given the sensitivities and existing environmental commitments, and given my clarification that the provision does not exempt from scrutiny public authorities that are concerned with national security, I hope she will consider withdrawing the amendment.

Photo of Deidre Brock Deidre Brock Shadow SNP Spokesperson (Wales), Shadow SNP Spokesperson (Environment, Food and Rural Affairs)

I remind the Minister again that the Scottish Government have no control over defence issues, so it is perhaps no surprise that they have had to exempt that in the continuity Bill. I hear what she says about some scrutiny being applied, but I still feel that there is too much of a blackout around the information relating to these areas. That is what I, environmental groups and members of the public have issues with.

I appreciate that there are sensitive areas that will have to be dealt with differently, but I am afraid I remain to be convinced that the exemptions are appropriate in this day and age, and that transparency across Government is not required by the public and various environmental groups that we have all dealt with. This is certainly a principle that is very important to me. With that in mind, I will push the amendment to a vote.

Question put, That the amendment be made.

Division number 20 Environment Bill — Clause 43 - Meaning of “environmental law”

Aye: 6 MPs

No: 9 MPs

Ayes: A-Z by last name

Nos: A-Z by last name

The Committee divided: Ayes 6, Noes 9.

Question accordingly negatived.

Photo of Deidre Brock Deidre Brock Shadow SNP Spokesperson (Wales), Shadow SNP Spokesperson (Environment, Food and Rural Affairs)

I beg to move amendment 116, in clause 43, page 26, line 11, leave out paragraph (c).

This amendment removes the exceptions for legislative provisions relating to tax, spending and the allocation of resources within government from the definition of ‘environmental law’ for the purposes of the scope of the OEP’s functions.

You will be relieved to hear, Mr Gray, that I will not be pushing the amendment to a vote, although that is something I am keeping in my back pocket for the future. It seems to me that by fully exempting the main thrusts of Government policy, which are the biggest tools in the Government’s cupboard, the Government are not driving their policy towards the best possible environmental goals. By wholly exempting tax and spend from their thinking on such matters, the Government are missing a chance to engage their biggest public policy lever.

I would have thought that at least some consideration of these issues would have been useful for the Government. That would have shown real commitment to change, improvement, making a future unlike the past and putting the environment at the middle of decision making. As I have said in the past, I appreciate the Minister’s sincerity and her belief in these issues, but surely she does not want it to look as though the Government are merely ticking a box to say that the gap left by Brexit is being filled. Instead, she can show that there is an environmental heart to this legislation and this Government, not simply warm words. Here is an opportunity to prove that.

I am particularly keen to hear the Minister’s reasoning behind the exemption, because it seems that the Government are missing a trick by not showing their commitment to environmental issues on this particular point.

Photo of Rebecca Pow Rebecca Pow The Parliamentary Under-Secretary of State for Environment, Food and Rural Affairs 11:00 am, 10th November 2020

I thank the hon. Lady for tabling her amendment and for saying she will not push it to a vote. Although I recognise the intention behind the amendment, it is important that the exemption is maintained to ensure sound economic and fiscal decision making. It would be inappropriate for the OEP to have oversight of the implementation of legislative provisions that specifically concerned taxation, spending or the allocation of resources, as the OEP needs to keep its focus on the protection of the natural environment.

Legislation regarding taxation is developed by Treasury Ministers, as the hon. Lady knows, and it is important that they are able to set taxes to raise the revenue that allows us to deliver essential services, such as the NHS, policing, education and schools—all those things that we all need and want. It would not be appropriate for the OEP to have jurisdiction over this area or over the administration of taxation regimes by Her Majesty’s Revenue and Customs.

I want to give a bit of clarity on this, as I think there may be some confusion: the term “taxation” does not extend to legislation relating to regulatory schemes such as the plastic bag charge, which was particularly successful, or the imposition of fees to cover the cost of a regulatory regime. Therefore, legislation relating to these matters could be considered within environmental law, and the OEP could take enforcement action if the public authority failed to comply.

The words

“spending and the allocation of resources within government” refer to decisions about how money and resources are designated within and between Departments. When specifically considering the exclusion or allocation of resources, it is important to note that it is only the legislative provisions on this subject that are excluded. It is just a matter of being very clear about that, as there are many other areas, such as the plastic bag charge, where the OEP will be able to engage.

If a public authority were to argue that it did not have adequate resources to implement an environmental law, that would not stop the legislative provisions in question being environmental law, although the authority’s comments on its resources could, of course, be considered during the OEP’s investigation. On those grounds, I ask the hon. Member whether she might withdraw her amendment, now that I have given her more clarity.

Photo of Deidre Brock Deidre Brock Shadow SNP Spokesperson (Wales), Shadow SNP Spokesperson (Environment, Food and Rural Affairs)

I thank the Minister for her comments, which have provided me with some clarity. As I said, I will not be pressing this matter to a vote, although I think I will pursue it in the future. We are all well aware of the Treasury’s track record in resisting attempts to constrain its activities in any way—I suspect there has been some arm twisting done behind the scenes on this one—and this is an issue I will revisit. I thank her again for her words and beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Amendments made: 32, in clause 43, page 26, line 16, leave out

“the National Assembly for Wales”

and insert “Senedd Cymru”.

See Amendment 28.—(Rebecca Pow.)

Amendment 33, in clause 43, page 26, line 21, leave out

“the National Assembly for Wales”

and insert “Senedd Cymru”.

See Amendment 28.—(Rebecca Pow.)

Amendment 34, in clause 43, page 26, line 22, leave out “Assembly” and insert “Senedd”.

See Amendment 28.—(Rebecca Pow.)

Clause 43, as amended, ordered to stand part of the Bill.