New Clause 2 - Environmental standards: non-regression

Environment Bill – in a Public Bill Committee at 9:45 am on 24th November 2020.

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‘(1) The Secretary of State has a duty to ensure that there is no diminution in any protection afforded by any environmental standard which was effective in UK domestic law on IP completion day.

(2) In this section, “IP completion day” has the same meaning as in section 39 of the European Union (Withdrawal Agreement) Act 2020.”—

This new clause looks to set a floor of environmental standards by taking a snapshot of EU standards at the end of the implementation period and giving the Minister a duty to uphold those standards as a minimum.

Brought up, and read the First time.

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

I beg to move, That the clause be read a Second time.

I echo the earlier congratulations. It is a pleasure to pick up the baton from my hon. Friend the Member for Southampton, Test, and to continue the dialogue with the Minister on a really important point. I remember the 2005 election. My party had a particularly incisive slogan, “Forward, not back”. It got us through the election, but I remember wondering at the time whether it was the most incisive view of the world. It represented an assumption that we do all look forward rather than going back. There is a risk in thinking that, which we can see in global politics at the moment—in America. Many of us feel that, hopefully, we are going forward, but when the previous President took the US out of the Paris agreement, in many people’s point of view we went backwards. There can be no presumption that the gains made in the past are necessarily guaranteed for the future.

Much as I admire the Minister’s enthusiasm and optimism, readings of history show that gains are not always maintained. As my hon. Friend the Member for Southampton, Test has pointed out, even when legislation looks as if we have done stuff, we can find that not much has happened when we go into the fine detail. There can sometimes be a deliberate attempt to pull the wool over the eyes of the public, or there can be other reasons.

The non-regression issue is really significant, because environmental law was an area on which we made progress when we were members of the European Union; people might take different views on our relationship with the EU, but we would still be able to agree that we made progress on environmental law. Much of the business of the Bill has been about how we move that into our domestic legislation.

The headline that the Government want from our discussions is that our aspirations are to be world-leading, as the Minister has said. But without tackling the regression issue, it is harder to make the case that we will be at the forefront. I strongly suggest that the Minister looks at the new clause, because it provides clarity and certainty. It sends a signal to the wider world that we are absolutely serious about our ambition to ensure that we are at the forefront of environmental protection.

There is a danger in thinking that this is just re-running the Brexit debate again; people tried to raise that on a number of occasions. In my reading ahead of discussion of the new clause, it struck me that environmental law is not simple. Environmental lawyers are a slightly niche species, but they explain that this is a question not of slavishly following whatever the EU chooses to do in the future, but of establishing that we do not go back. Some people in the field think that non-regression is an exciting and emerging norm for environmental law, with which we should be associated. They point us to international instruments, such as the 2015 International Union for Conservation of Nature draft international covenants on environment and development, the 2017 draft Global Pact for the Environment, and the 2018 Escazú agreement for the Americas, which mirrors the Aarhus convention.

The point is that how we make progress globally is not always linear. It is complicated and in some cases involves difficult trade-offs and difficult historical understandings of the advantages that we have as a developed nation, as we try to balance the pressures that we put on other nations as they try, rightly, to improve their standard of living. It is a complicated ratcheting process that requires difficult trade-offs.

As my hon. Friend the Member for Southampton, Test suggested, trade-offs have to be made within our own Government, but there are also complicated negotiations with others. Other countries, such as France, have recently incorporated non-regression into their environmental codes, which has allowed the courts to make a number of judgments on the application of that principle. Mr Gray, I think this issue is sufficiently important for a Division, but first I want to make one or two more comments.

In my reading, I looked at a paper by Professor Andrew Jordan and Dr Brendan Moore, who have been looking closely at what we do in this place. They have analysed the statutory instruments that so many of us enjoy sitting and discussing. Sadly, they have come to some rather worrying conclusions. I suspect that all of us who read such instruments do not necessarily get into the small print, but they have discovered that many of the EU provisions had review and revision clauses in them, which allow legislation to be considered again to see whether it is doing what we thought it was going to do. It is one of the shortcomings of the work we do in this place: we pass many laws but do not necessarily come back to them in a timely way to check whether the outcomes were as we hoped and whether they need updating. Apparently, a development in EU law has meant that this has become more and more the case.

When Ministers make those SIs—I frequently moan about this—we are told that they are just technical changes bringing the legislation into UK law. It appears that there may be a little bit more to it than that. The paper analysed some 24 SIs; the authors found that 88%—21 of the 24—of EU laws

“contained review clauses and 79%...contained revision clauses.”

Unfortunately, in many cases we have not moved those review and revision clause across.

“The Government removed the clauses across a number of topic areas, spanning climate change, waste, agriculture, and heavy metals.”

To my dismay, I discovered that some of those were the very SIs that I have been working on recently, including the Timber and Timber Products and FLEGT (EU Exit) Regulations 2018, which apparently did have a review and revision clause when they were part of EU law, but no longer have them under our law. There was a similar case in the Pesticides (Maximum Residue Levels) (Amendment etc.) (EU Exit) Regulations 2019.

My point is that, when one looks at the fine detail, not all was as it seemed. Sadly, our protections are not as strong as they were. That is the theme of most of my contributions. We will be less well protected next month than we are today. That is why the non-regression principle is so very important. I commend it to the Minister and ask her to take the advantage that we are yet again offering her and which would strengthen her Bill.

Photo of Fleur Anderson Fleur Anderson Labour, Putney 10:00 am, 24th November 2020

The clock is ticking: we are only five weeks away from the end of the famous implementation period. This amendment seeks to freeze that in time and say that in five weeks’ time there will be no regression or diminution in any protection afforded by any environmental standard effective in UK domestic law. Surely that is the most important part of the Bill. At least we could say that the Environment Bill is being brought forward to replace, renew and look beyond all the environmental protections that we will not have when we are not an EU member: that we will do better than that—or at least, not regress. If the amendment is not agreed to, we are worried that we will not have that safeguard.

The Government have frequently stated their desire to improve the quality of our environment and protect our existing environmental standards. Why, then, do they stop short of enacting an unambiguous and binding requirement not to regress on existing rules, as would be enacted through the amendment? This is not about staying tied to EU rules. As the shadow Minister says, we are not re-enacting Brexit at all; rather, we are ensuring that the UK rules get better and better over time and are protected from deregulatory pressure.

Non-regression is an exciting and emerging norm of environmental law, and we need to harness its potential. That requires a positive trajectory for environmental standards, with the ultimate goal of progressively improving the health of people and the planet. There is a precedent, as was mentioned, in other international laws and instruments. Non-regression can be found explicitly in international instruments, such as the 2015 International Union for Conservation of Nature draft international covenant on environment and development, the 2017 draft global pact for the environment and the 2018 Escazú agreement, which mirrors the Aarhus convention for the Americas. It is important to mention those because there is precedent. We cannot say that such a provision is unnecessary and does not need to be done. It should be added to the Bill.

To underscore why we, as the Opposition, feel so strongly about the issue, one need only look at how much the UK’s environment has benefited from the EU framework that the Bill is replacing. In the 1970s, we pumped untreated sewage straight into the sea, but EU laws and the threat of fines, as well as good enforcement, forced us to clean up our act. Now, more than 90% of our beaches are considered clean enough to bathe off. I have yet to hear a meaningful reason why the Government would not at least commit to the new clause. To say that it is not necessary is just bluster and evades the issue, and it is just not good enough.

If we are to put our money with our mouth is, the new clause should be added to the Bill, especially because it would match our ambition as we host COP26 next year. It would be a meaningful legal commitment to non-regression, and in turn a powerful endorsement of the Government’s stated ambitions to be world leaders on environmental matters. It would create an authoritative platform from which the UK could seek to improve global green governance. There is nothing to lose by adopting the new clause and everything to gain.

Photo of Rebecca Pow Rebecca Pow The Parliamentary Under-Secretary of State for Environment, Food and Rural Affairs 10:15 am, 24th November 2020

I thank the hon. Members for Cambridge and for Putney for their input. The hon. Member for Cambridge seemed to suggest that my optimism and enthusiasm are negative assets, but I would never even have started my journey to this place if I had not had such optimism and enthusiasm; I am sure the same could be said of every Member here.

I vowed all that time ago that I would engage with environmental issues should I ever make it to Parliament. Lo and behold, here we are discussing the Environment Bill. I know that the hon. Gentleman is very passionate about the environment, and I like to think that he is just teasing me, because he knows that while I and my colleagues are in office, we will stand up for everything in the Bill. We hope that future Governments will do the same, because that is the purpose of the legislation.

The new clause, which aims to tie the UK to EU law at the end of the transition period, is unnecessary. To put it simply, we have left the EU and we should not bind ourselves to the legislative systems of the past. The Government made it very clear that the UK will continue to be a global leader, championing the most effective policies and legislation to achieve our environmental ambitions. I believe that we have demonstrated that even today with the due diligence clause. We will continue to improve on our environmental standards, building on existing legislation as we do so.

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

The Minister is making some interesting points, but does she agree that this is not about staying tied to the EU’s apron strings but about UK rules getting better and better? The new clause provides us with a baseline to improve on.

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

The hon. Lady leads me neatly on to say that the UK does not need the EU to improve the environment; our high regulatory standards on environmental protection are not dependent on EU membership. Rightly, one could say that over the years we have taken on board standards, such as those governing sewage in water, but we have actually influenced a lot of European policy. Now we are going further. We often led the way, as members of the EU will acknowledge.

To continue with the same approach as the EU is not good enough. I know that many members of the Committee are well aware of the damaging effects of some EU policies, in particular the common agricultural policy. The thought behind it was good, but the environmental consequences are not necessarily to be lauded. That is why we now have this great opportunity to change it, as we must. We will do better.

Lest everyone always thinks that the EU offers some gold-plated system, let me give some examples of where we have already gone ahead of it. For a start, we were the first major economy to legislate for net-zero emissions by 2050. Another good example is the UK’s landfill tax, which is one of the highest in Europe and has been effective in reducing waste disposal and increasing recycling. The UK has also introduced one of the world’s strictest ivory bans to protect elephants from poaching, whereas the EU has yet to legislate on that. Similarly, our clean air strategy has been applauded by the World Health Organisation as an example for the rest of the world to follow.

I must also mention the UK’s microbeads ban, which shows the power of the Back Benchers who worked on it; just the other day, my involvement and that of many others was cited in the Chamber. That ban came into effect in 2018, but the EU did not move to introduce an equivalent ban until a year later. Those are just a few examples, not to mention our recent ban on single-use plastics—plastic straws, drink stirrers and cotton buds—coming into force in October 2022. We are ahead in many cases.

There are concerns about non-regression, but surely, after we have sat here for weeks going through the Bill with a fine-toothed comb, it is obvious that we have a real, detailed framework of targets, monitoring and reporting. We are then to be held to account on whether the improvement is actually occurring: Parliament will be able to scrutinise. There will be a closer watch on these things than ever before, which is a good thing. The Secretary of State is required to report to Parliament every two years on what is happening on the environmental front internationally—to look at the new environmental laws being introduced, sift through them and work out which ones would benefit us.

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)

Would the Minister at least agree that nothing in the new clause suggests that we should be pegged to EU law, as we were in the past? It simply says that a snapshot should be taken at the point of departure, so that there is something to stand on when it comes to things that we wish to carry out in the future. Far from pegging us back, it actually supports the sort of thing the Minister is suggesting.

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

We have reached that point already. We have been in the EU, so have had all the same laws. We are not going to sweep them all away, but we will build on them. When that review of international law is done, the EU laws will also be looked at.

I think we have covered what the hon. Member for Cambridge is asking for. On the SI points—I am very interested that the hon. Gentleman has looked at that report about the SIs—I should say that, three to five years after Royal Assent, the responsible Department must submit a memorandum to the relevant Commons departmental Select Committee, published as a Command Paper. The memorandum will include a preliminary assessment of how the Act has worked in practice, relative to objectives and benchmarks identified during the passage of the Bill and in supporting documentation.

The Select Committee, or potentially another Committee, will then decide whether it wishes to conduct a further post-legislative inquiry into the Act. Perhaps we should send that to the authors of that report, because perhaps they were not aware of it. I think it is really helpful, and I hope that it helps.

I have not yet mentioned the OEP, which will help to uphold our standards as well. It will be absolutely essential, ensuring Governments are held to account for the environmental performance I mentioned before. All that goes further than the EU’s environmental governance framework, with stronger binding remedies available to the courts and a wider scope to hold all public authorities to account on the environment. It is much wider.

Our sovereign Parliament must be able to fully realise the benefits of regulatory autonomy in order to take action on improving environmental protections in the future. To support parliamentary scrutiny of our ambitions, the Bill contains provisions in clause 19 that allow Parliament to hold the Government to account on delivering their commitments to improving environmental protections, and where a new Bill contains environmental provisions, the Ministers in charge of that Bill—who will potentially be Ministers in other Departments—will be required to make a statement confirming whether it maintains the level of environmental protection in place at the time of the Bill’s introduction. I hope that has been helpful, and I ask the Opposition if they now might withdraw the new clause.

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

I do not think the Minister will be surprised to hear that I am not convinced and will not be withdrawing the amendment. The reason we are not convinced is that there is nothing wrong with optimism, but it has to be tempered by realism, and frankly, as we have seen at the very top of this Government over the past few months, optimism does not always produce results. Looking at the state of our economy, I suspect that we are facing a hard winter and the pressures that will be put on environmental protections will be intense. It is not unreasonable for us on the Opposition Benches to once again remind Government Members about comments made by the current Prime Minister and previous Conservative leaders. The green crap is still the green crap, as far as some are concerned—[Interruption.] That was said by a Conservative Prime Minister.

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

I ask the hon. Gentleman to withdraw that remark and stop referring to that. We have moved echelons from there, and it is really unfair that this keeps being dredged up by the Opposition, who themselves do not have a great record on the environment. Does he agree?

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

The Minister might well wish it had not been said, and I wish it had not been said, but it was.

Photo of Richard Graham Richard Graham Conservative, Gloucester

On a point of order, Sir George. Is it appropriate in this Environment Bill Committee, where we are discussing serious issues, for a Member, however well intentioned, to raise a supposed quote by a former Prime Minister from several years ago, which he certainly never heard—none of us heard it—in language that is arguably not particularly parliamentary?

Photo of James Gray James Gray Conservative, North Wiltshire

That, of course, is not a matter of order; it is a matter of content.

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

The point I am making is that all Governments will face a dilemma and a pressure when it comes to economic imperatives and environmental protection. We have seen as much in the response to questions I raised about the impact of the planning White Paper, which have not been addressed by the Government. I understand why they have not been addressed—because they are not addressable. There is a tension, and the question we are asking is: when those pressures come—as they will—is this legislation strong enough to protect our environment? The Minister says it is; I say it is not, and that is the difference. I am sure the hon. Member for Gloucester appreciates the point I am making, because it can hardly be denied that there is a tension. If he thinks there is not a tension, that is great, but that is a different world from the one I am living in.

The non-regression issues go beyond the EU question. The point we are making is that a worldwide set of negotiations will continue, hopefully in a more positive way with the new American Administration, and non-regression will be part of those wider discussions. Exactly as my hon. Friend the Member for Southampton, Test has said, this new clause does no more than establish a baseline from which we believe we should be moving, and we see no reason to not put it in the Bill.

I hear what the Minister says about the review and revision clauses that were in the transposed legislation, but I gently say that when that comes up, it will be a very big piece of work, given the number of statutory instruments we have been discussing. In fact, as I think most of us appreciate, once we start digging into them, it often opens up a cornucopia of riches in terms of issues to look at, and we see that what looked like a very simple transposition is actually extremely complicated. We think non-regression is really important, and that is why we intend to press this new clause to a Division.

Question put, That the clause be read a Second time.

Division number 48 Environment Bill — New Clause 2 - Environmental standards: non-regression

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.