My Lords, I will call Members to speak in the order listed. During the debate on each group I invite Members, including Members in the Chamber, to email the clerk if they wish to speak after the Minister. I will call Members to speak in order of request. The groupings are binding. A participant who might wish to press an amendment other than the lead amendment in a group to a Division must give notice in debate or by emailing the clerk. Leave should be given to withdraw an amendment. When putting the Question, I will collect voices in the Chamber only. If a Member taking part remotely wants their voice to be accounted for if the Question is put, they must make this clear when speaking on the group. We will now begin.
Clause 16: Policy statement on environmental principles
73: Clause 16, page 10, line 9, at end insert—
“(1A) In exercising their functions and carrying out their duties under this Act, the Secretary of State and all public bodies and authorities must adhere to the environmental principles.”
My Lords, it is my pleasure to open the debate, especially on this group of essential amendments, which really goes to the heart of making the Bill fit for purpose. We must all know that the Bill currently just does not have any bite. We will have all these lovely environmental principles floating around, but no real duties on the Government other than having “due regard”. “Due regard” is a get-out clause. Ministers can easily have “due regard” for something and then make a completely opposing decision, and they know it. That is why they have chosen this wording. It is weaselly, squirming and not worthy of any Government who take the environment seriously.
My Amendment 73 would rectify this by requiring Ministers, public bodies and authorities to all stick to the environmental principles. This would be a clear requirement, so when they do not stick to them those decisions would be judicially reviewable. That is how things should be. It is a simple amendment that would give real clarity, because we all know what the environmental principles are.
My Amendment 75 would flesh out the environmental principles so that they reflect a much broader set of principles, written in simple, understandable language. For example, the precautionary principle and the polluter pays principle would actually be explained and defined. It would also add things such as using the “best available scientific knowledge”, the principles of public participation and the principle of “sustainability” to take into account the health of present generations and the needs of future generations.
Taken together, these amendments would create an accessible blueprint for our country and for the planet. They would set out the clear environmental principles on which our future would be founded, and require—not simply invite—the Government to implement those principles in all areas of policy. This is the type of legislation that a Green Government would implement, these are the principles that we would apply and these are the ways in which we would make ourselves accountable to Parliament, to the courts, and to future generations. I beg to move.
My Lords, I have two amendments in the group. Their aim, rather like those of the noble Baroness, Lady Jones of Moulsecoomb, is to enable the Government to ensure that the environmental principles do the job we need them to do, making sure that environmental considerations are at the heart of decision-making. Indeed, the Explanatory Notes say of the principles:
“The principles work together to legally oblige policy-makers to consider choosing policy options which cause the least environmental harm.”
I am sure we would all welcome that, but, as the noble Baroness rightly said, there are far too many caveats and exceptions in this list. My Amendments 76 and 78 refer to four of them, and I would like to spend a little time drawing them out.
The first is alluded to in the amendment from the noble Baroness, Lady Jones, which is that public bodies are excluded. The policy statement on environmental principles applies only to Ministers. We know that public bodies, of which there are well over 350 in addition to all the local authorities in this country, do the lion’s share of pushing forward government policy throughout the country. It is therefore an omission of some magnitude that only Ministers of the Crown have to pay due regard to the policy statement on environmental principles. It seems to me that we would want all public bodies, such as Homes England and other bodies, to take account of this policy statement that the Government intend to prepare.
The second issue about which I have concern is the excessive use of the word proportionality by the Government as a caveat. If the noble Lord, Lord Vaux, were here I am sure that I would agree with him that there are times and places when the use of “proportionate” is correct. I feel comfortable with Clause 16(2) saying:
“A ‘policy statement on environmental principles’ is a statement explaining how the environmental principles should be interpreted and proportionately applied by Ministers … when making policy.”
I am delighted to speak to this small group of amendments. I shall speak particularly to my Amendment 77A but before I do, I would be interested in probing my noble friend on the relationship between Clause 16, on environmental principles, and Clause 45, on environmental law. I have another amendment asking that we write the Aarhus convention into the Bill, so I am interested in how the principles relate to the law in the context of this ground-breaking Bill.
My second point relates to government Amendments 80, 298 and 299. I hope he will look carefully at Amendment 80A in the name of the noble and learned Lord, Lord Hope of Craighead, and Amendment 81 from the noble Lord, Lord Wigley, as there may be nuances relating to Scotland and Wales that the government amendments should consider.
In speaking to Amendment 77A, I am extremely grateful to the Bar Council for briefing me and bringing to my attention that the phrase “due regard to” is inappropriate here and should, as the amendment says, be replaced by “ensure compliance with”. The background to this is that the concept of “due regard” has come before the courts a number of times, so guidance is available on the exercise of due regard by public authorities. This is in the context of public bodies making decisions—concerning equality legislation, for example—rather than making policy, as proposed in the Bill before us.
I shall give a couple of examples. Lord Dyson’s description of “due regard” in R (Baker) v Secretary of State for Communities and Local Government in 2008 has been paraphrased as
“regard that is appropriate in all the particular circumstances in which the public authority concerned is carrying out its function as a public authority.”
The courts have otherwise considered those circumstances where a public body is required to have regard alone to the policy or government guidance. On the one hand, strength may be given to the terms as set out by the High Court in the case of Royal Mail Group Plc v The Postal Services Commission 2007, in which it was held in the context of a decision under the Postal Services Act 2000 to impose a penalty on the licence holder that must have regard to a policy statement, that:
My Lords, I am delighted as always to follow the noble Baroness, Lady McIntosh, and well understand the points that she has made. I hope that the Minister will listen to them. I support the assertions made by the noble Baroness, Lady Jones, in moving Amendment 73, but my amendments relating to Wales deal with a somewhat different aspect of these policies.
There is a somewhat bizarre linking of issues in the way that they have come together in this debate. We are where we are because of how Clauses 16 to 18 are formulated and the manner in which the Government have tried to ensure that provisions relating to environmental principles do not fall foul of devolved competences in Wales. That is absolutely fair enough but it is far from clear to me, as I suspect it is to the proposers of Amendment 78, what exactly the Government are trying to do. I have tabled Amendments 79 and 81 to try to tease out exactly what their intention is, and I was grateful to the noble Baroness, Lady McIntosh, for highlighting Amendment 81.
As things stand, in making policy that may impact on Wales, the provision is that the Minister must not have due regard to policy statements on environmental principles to the extent that they relate to Wales, whether or not those spheres of environmental policy are devolved. If the Bill has no application whatever to Wales then, as for Scotland and Northern Ireland, Chapter 1 should be excluded from any applicability to Wales. But the Government have insisted on making Chapter 1 applicable in certain circumstances to Wales. On a superficial reading, it would seem that the Government insist that a Westminster Minister will have some powers relating to Wales, although we do not know exactly what they may be. But whatever they are, in applying those policies in Wales, the Minister shall not have regard to environmental principles, though in relation to similar responsibilities in England he will need to have regard to those principles.
The issue of environmental principles is a very important dimension of the Bill and we must be clear about the way in which it applies or does not apply to Wales. It may be that the Minister will look again at the wording of these clauses before Report and, if necessary, bring forward further amendments on the Government’s behalf to clarify the situation. I certainly look forward to hearing his response to this debate.
My Lords, as always, it is a pleasure to follow the noble Lord, Lord Wigley. I am speaking about devolution as well, but devolution in relation to Scotland is the topic that I wish to concentrate on. I will speak to Amendment 80, which is the first of the three government amendments in this group, and to my amendment to that amendment, which is Amendment 80A. I am grateful to the noble Baroness, Lady McIntosh, for what she said about them.
If your Lordships will forgive me, I need to take a little time to explain which problem Amendment 80 seeks to deal with. Both these amendments in fact address the legislative competence of Section 14(2) of the UK Withdrawal from the European Union (Continuity) (Scotland) Act 2021. That subsection states that UK Ministers must have regard to the guiding principles which are set out in Section 13 of that Scottish Act. Those principles are derived from the equivalent principles provided for in the EU legislation, which Scotland has decided to adopt. The UK Ministers are told by subsection (2) that they must have regard to them in making policies extending to Scotland. Amendment 80 seeks to qualify that provision by saying that it
“does not apply to policies so far as relating to reserved matters.”
In other words, it seeks to amend the Scottish Act by saying that it does not apply to environmental policies made by the Secretary of State under the provisions of this Bill. Your Lordships are being asked to accept that amendment and I am afraid that this raises a question of law.
The question is whether the direction by the Scottish Parliament to UK Ministers, which we are being asked to qualify in this way, is compatible with the devolution settlement as set out in the Scotland Act 1998. Its wording seems to assume that, in this context, the distinction between what is devolved to the Scottish Parliament—and thus within its legislative competence—and what is reserved to Westminster with regard to the environment can be determined entirely by the geographical area to which the policies relate. In other words, it assumes that environmental policies directed to what happens in Scotland, whatever their subject matter, must be for the Scottish Parliament and the Scottish Ministers.
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However, for the UK Parliament to amend an Act of the Scottish Parliament for the reasons I have just outlined is not a matter to be taken lightly. Normally one would expect the Scottish Parliament to do this for itself. One must assume that the reason why we are being asked to accept this amendment and make the amendment here is that the Scottish Parliament is not willing to do that.
I do not find that entirely surprising, given what happened to a previous EU continuity Bill introduced to the Scottish Parliament in 2018. The UK law officers took the view that much of what it sought to do was outside the legislative competence of the Scottish Parliament. Their view was vigorously contested, so there was a reference to the UK Supreme Court, which resulted in a finding that a number of the Bill’s provisions would not be law for that reason. The Bill was not proceeded with any further, and a new Bill, which became the 2021 Act we are looking at, was introduced instead. That Bill was not challenged by the UK law officers before it became law.
As it happens, two other Bills passed by the Scottish Parliament are the subject of references to the Supreme Court which are being heard in that court as we speak this afternoon. One concerns the incorporation into a Scottish Bill of the UN Convention on the Rights of the Child, as to the competence of which there is strong objection from Westminster and an equally strong resistance to that objection from Holyrood. Common to both is the UK Ministers’ contention that it is not open to the Scottish Parliament to make laws whose effect would be to impose legal obligations on them with regard to reserved matters.
In view of that history, government Amendment 80 is taking us into a very sensitive and much-disputed area. That is why I have taken such a long time saying what this is all about. We do not have the Supreme Court’s view on this case. Nevertheless, I believe, for the reasons I have given, that Section 14(2) of the Scottish Act is in need of correction, so I support this amendment.
But there is an aspect of this matter that the amendment does not deal with: the need for consultation with Scottish Ministers when UK Ministers are making environmental policies with regard to reserved matters in Scotland. Here, geography does matter, because what is done in one subject area with regard to the environment within Scotland is bound to affect another; that is the way the environment works. In its report on this Bill, the Constitution Committee, of which I am a member, has stated:
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However, by the time we get to Clause 18, there is a disproportionate use of the word “disproportionate”, which my amendment seeks to remove. It is again trying to curtail the application of the consideration of the environmental benefit.
Those are two areas, but the two I really wish to concentrate on are the exceptions of the MoD and the Treasury having to take due regard of the policy statement. As I said at Second Reading, the MoD has 2% of the land use in our country. It has a third of our SSSIs, which accounts, in this time of football interest, to more than 110,000 football pitches’ worth of the most protected land in its purview and control.
Last year, when the National Audit Office did a review of the MoD that looked at its “taking account of” environmental issues, it said that environmental protection was “a Cinderella service” in the MoD. As it stands, given all these SSSIs on MoD land at the moment, we have to ask: if the Government are going to meet their 25-year environment plan, which says that they want to have 75% of protected sites in a favourable condition by 2042, how are we going to achieve that if the MoD is not involved? At the moment, 52% of the MoD’s sites are not in a favourable condition.
I do not wish Members of the House to think that I do not think very highly of the MoD or its job of national security, because I do. It has proved that it can do a sterling job of environmental protection. I know this because last year, on MoD land near me in Pirbright, it found a very rare and endangered spider called the great fox-spider. It is instances like that, of which there are a number around the country, that show that national security and conservation and environmental protection can go hand in hand.
However, I do not understand why there is this blanket exemption for the MoD to have due regard to the policy statement. The Minister in the other place, Rebecca Pow, said in Committee:
“it is fundamental to the protection of our country that the exemptions for armed forces, defence and national security are maintained.”
That is not an explanation but merely a statement. She went on:
“The exemptions relate to highly sensitive matters that are vital for the protection of our realm”.—[Official Report, Commons, Environment Bill Committee, 3/11/20; col. 969.]
Again, that does not explain what those highly sensitive matters are.
Since I was not very clear what the Minister was trying to get at last November, I wrote and asked the MoD. I received a very eloquent reply in February from the Minister, Jeremy Quin, from which I quote:
“the Department remains committed to its duty to conserve biodiversity and delivering on the extended duty to ‘enhance’ biodiversity within the Environment Bill. These duties are not altered by the focused defence disapplication in the Bill.”
I question what Mr Quin is saying there. This is not a focused disapplication, and I ask the Minister here: if there are good and focused reasons why the MoD needs a specific disapplication, then we are all reasonable people and I am sure we will be happy to see that expressed in the Bill, but as it stands it is not a focused disapplication.
My second point is that the MoD is subject to the climate change obligations as outlined in the Climate Change Act. Indeed, the Climate Change Committee regularly offers structured advice to the MoD on how it is applying its climate change targets. So if it is good enough for the MoD to “have regard to” the obligations of the Climate Change Act, why is it not good enough that the MoD must take due regard of the policy statement on environmental principles?
Finally, although I am probably going on too long, the other issue I am extremely concerned about is the Treasury’s exclusion from the need to have due regard to the environmental policy statement. That means that consideration of departmental budgets and tax spending, which we know are fundamental to delivering the environmental gains, are outwith the consideration of the statement. In the Government’s response to the Dasgupta review—a day in Committee cannot go by without someone mentioning it—the Government agreed with Dasgupta that nature is a macroeconomic consideration and spelled out in some detail what they were doing to align national expenditure with climate and environmental goals. They quoted the duty on Ministers to have due regard to the policy statement on environmental principles but, perhaps not surprisingly, they did not mention the disapplication for the Treasury. Perhaps the Minister might wish to comment on the discrepancy between the Government’s response to the Dasgupta review and the statement.
I feel strongly that public bodies need to be included within the scope of the policy statement and that the MoD in particular needs to be in scope unless there are very tightly defined exceptions. Excluding the Treasury and all the commitments to departmental spending rides a coach and horses through this measure and frankly, the Government’s aim to deliver the environmental considerations at the heart of policy and decision-making will be wasted.
“The obligation to have regard to the policy recognises that there may be circumstances when it does not have to be applied to the letter but … there must be very good reasons indeed for not applying it.”
There is another example, in the context of planning law, where a similar conclusion may be drawn—the case of Simpson v Edinburgh Corporation.
I submit to the Minister that the requirement in Clause 18 of the Environment Bill is currently for a Minister to
“have due regard to the policy statement on environmental principles”,
not simply the environmental principles, when making policy, not when making decisions. From that follow a number of qualifications to that requirement, based on the significance of any environmental benefit or the proportion or disproportion of environmental benefit from the policy itself.
I argue that the use of the term “have due regard” in Clause 18 creates a potential tension between the Government’s clear entitlement to promulgate policy and to express their policy “in unqualified terms” subject to the
“basic tests of reason and good faith”,
as was argued in SSCLG v West Berkshire, and the rule as applied in Padfield v Minister of Agriculture, which is that a statutory discretion must be deployed to promote the policy and objects of the Act and the significance of having a set of environmental principles enshrined in statute in the first place. To that end, a clearer duty to “ensure compliance with” or “ensure accordance with”, as opposed to “have regard to”, would help to avoid confusion, leave the promulgation of policy open to debate in the courts and give greater recognition to the importance of the principles.
I know that, in the context of previous Bills, we have had cause to discuss the context of “have due regard to”. I am arguing for the importance of leaving the courts with a power to impose a financial penalty, as in this case, upon an unsuccessful body—including, for example, statutory undertakings such as sewerage and water undertakers—which has been found to be in breach of environmental law. It is extremely important that, in the context of what we are asking the OEP to do in the remit of the Bill, it be given real teeth when holding public bodies to account and mirror the pre-existing power, previously exercised by the European Commission and which it is now intended that the body of the OEP should fulfil post Brexit.
The requirement that the breach be severe to justify a financial penalty is noted. It is assumed that this is to ensure that a financial penalty be the exception rather than the rule, but this would also be in the context that the OEP’s power to apply for an environmental review is already on the condition that it considers the authority’s failure to comply to be serious. To that end, it might be less open for debate as to whether it is severe or serious if the court’s discretion were wider, and therefore based upon all the circumstances of the case, but to be exercised where those circumstances are exceptional.
In the circumstances before us, “have due regard to” is not appropriate. I would like to replace it in the Bill with the words: “ensure compliance with”. That would give the OEP greater clarity and, should it be subject to judicial review, it would be easier for the courts to clarify in those circumstances. I hope that my noble friend will look sympathetically on probing Amendment 77A.
The problem, however, is that a provision in an Act of the Scottish Parliament is outside the competence of the Parliament if it relates to reserved matters. Guidance from the Supreme Court tells us that the phrase “relates to” requires one to consider the purpose of the provision under challenge. If its relationship to a reserved matter is merely loose or inconsequential, it will not be outside competence. Speaking for myself, I do not see how a direction to Ministers of the kind contained in Section 14(2), with regard to which environmental policies they must have regard, could be said to be loose or inconsequential. In other words, it seems that the Scottish Parliament’s competence in regard to environmental matters is determined by the subject matter of the reserved matters, not by the geographical area to which they relate.
Environmental policies with regard to energy and transport, perhaps the most important examples in this context, are therefore for Westminster and not for Holyrood. That extends to things such as the transmission, distribution and supply of electricity; restrictions on navigation, fishing and other activities in connection with offshore installations; the provision and regulation of rail services; and the regulation of aviation and air transport. These activities happen within Scotland but the statute says that they are reserved matters. This means that the making of environmental policies that are to be applied to them must be left to Westminster.