Environment Bill 2021-22: Lords amendments and "ping pong" stages

What does the Bill aim to do?

The Government sets out that the main purposes of the Environment Bill are to:

• Transform our environmental governance [as] we leave the EU by putting environmental principles into law; introducing legally binding targets; and establishing a new Office for Environmental Protection.
• Increase local powers to tackle sources of air pollution.
• Protect nature and improve biodiversity by working with developers.
• Extend producer responsibility, ensure a consistent approach to recycling, introduce deposit return schemes, and introduce charges for specified single use plastic items.
• Secure long-term, resilient water and wastewater services, including through powers to direct water companies to work together to meet current and future demand.

The Bill had its first reading on 30 January 2020. It passed its second reading without division on 26 February 2020. At the Commons Committee stage there were 22 sittings between 10 March and 26 November 2020. There was a pause in the Committee’s sittings during this period due to Covid-19 related restrictions. Day one of the Bill’s Commons Report Stage took place on 26 January 2021 in the 2019-21 parliamentary session. The Bill had a carry-over motion and day two of Commons Report Stage and Third Reading took place on 26 May 2021 in the 2021-22 session.

The Bill had its second reading in the House of Lords on 7 June 2021, which it passed without division. The House of Lords Committee Stage held eight sittings from 21 June – 14 July 2021. The Lords Report stage was held over four days from 6-15 September 2021. Lords Third Reading was held on 13 October 2021, which it passed without division.

The Bill returned to the Commons, on 20 October 2021, for consideration of Lords amendments. On 26 October 2021 the Lords considered the Commons amendments.

Full background on the Bill, and its provisions as originally presented, can be found in the Commons Library Analysis of the Environment Bill, 6 March 2020. Information about the changes made at Committee Stage, Report Stage and Third Reading in the House of Commons can be found in the Commons Library briefing, Environment Bill 2019-21 and 2021-22: Report on Committee and Remaining stages in the Commons.

Lords Committee Stage

In the eight House of Lords Committee sittings there were no amendments that were pushed to a division. No non-Government amendments were added to the Bill. Key Government amendments added to the Bill included new provisions on:

• Government requirements on reducing sewage discharges from storm overflows;
• a requirement for the Government to set a species abundance target, to be met by 31 December 2030; and
• the introduction of biodiversity net gain in relation to development consent for nationally significant infrastructure projects. This was designed to complement the existing provisions in the Bill for biodiversity net gain for other types of development.

Lords Report Stage

The House of Lords Report stage was held over four days from 6-15 September 2021. At Report Stage a number of Government and non-Government amendments were passed and added to the Bill.

Key Government amendments included:

• Amendment to the wording of the species abundance target, with the aim of providing more clarity;
• Increased Parliamentary scrutiny for the Government’s guidance on the Office for Environmental Protection (OEP) enforcement policy;
• Increased Parliamentary scrutiny of waste-related guidance; and
• Providing powers to require biodiversity gain sites to be maintained for longer than 30 years.

Non-Government amendments from Liberal Democrat, Labour, Green Party and Crossbench peers were added to the Bill, following divisions, and covered a wide range of issues, including:

• A requirement on the Prime Minister to declare a biodiversity and climate emergency, within one month of the Bill being passed;
• The addition of soil health as a priority area in the Bill;
• A requirement that the Bill’s target for fine particulate matter commits the Government to achieving the 2005 World Health Organization guidelines (of 10 micrograms per cubic metre) by 2030 at the latest;
• Placing a statutory duty on the Secretary of State to meet any interim targets set under the Bill;
• Removal of the exceptions for armed forces, defence policy, tax, spending and resources from the requirement to have due regard to the policy statement on environmental principles;
• Removal of the power for the Secretary of State to issue guidance to the OEP on the matters concerning its enforcement policy and replacement of this with a requirement for information about the OEP’s funding to be laid before Parliament;
• Removal of restrictions on the High Court’s discretion in determining a remedy in environmental review cases;
• Extending the scope of the power to set charges for single use plastic items to encompass all single use items (not just plastic);
• Placing a duty on sewerage undertakers to take all reasonable steps to ensure untreated sewage is not discharged from storm overflows and improve enforcement of illegal discharges;
• Changing pesticide authorisation processes to include an assessment on the long-term effects of pesticides on honeybees and wild pollinators;
• Limiting the powers to amend the Habitats Regulations and setting out who should be consulted on any changes;
• Requiring the Government to adopt an “ancient woodland standard” to be used to protect ancient woodland from development;
• Requiring the Government to conduct a review of the efficacy of the Bill’s provisions on deforestation and forest risk commodities on the first and second anniversaries of the provisions coming into force, (rather than the second and third anniversaries); and
• Requiring conservation covenants be executed by a deed setting out the key terms of the agreement as to duration and consideration (payments).

Lords Third Reading and return to Commons

Third Reading in the House of Lords took place on 13 October 2021, which it passed without a division.

Commons consideration of Lords amendments

The House of Commons considered the Lords’ amendments on 20 October 2021. On return to the Commons the Bill (showing just the Lords amendments) was reprinted as Bill 168 2021-22.

The Government amendments made in the House of Lords were all agreed. The non-Government amendments were all disagreed or removed by further amendment, either with or without division. The Government proposed amendments in lieu of the non-Government amendments in relation to:

• Parliamentary scrutiny of Government guidance issued to the OEP on the matters concerning its enforcement policy;
• Allowing a charge to be imposed on single-use items made from any material, not just plastic; and
• Making conservation covenants exercisable by a deed (rather than in writing signed by the parties)

During the debate, the Government also announced a number of steps that it intended to take to improve protection of ancient woodland.

Following the debate, formal Reasons were drawn up for disagreeing to the amendments, and these were transmitted to the Lords.

The Bill was reprinted as HL Bill 57 2021-22 which sets out the Commons Reasons, Amendments in lieu and Amendment to a Lords Amendment.

Lords consideration of Commons amendments: 26 October

The House of Lords considered the House of Commons amendments on 26 October 2021. At this sitting a number of non-Government amendments previously made by the Lords were not insisted-on.

The Government was defeated (on division) on three areas of the Bill where amendments in lieu were agreed by the Lords. These were:

• The rejection of Commons Government amendments concerning the Secretary of State’s powers and process for publishing guidance on the Office for Environmental Protection’s (OEP) enforcement policy. This was replaced, through an amendment (agreed on division), with provision requiring Government guidance on the OEP’s enforcement policy to be published as a draft for consultation and laid before Parliament. It also adds to the Bill provisions stating that the OEP has complete discretion in the carrying out of its functions in respect of (a) preparing its enforcement policy, (b) exercising its enforcement functions, and (c) preparing and publishing its budget. Similar amendments were also made in relation to the Northern Ireland.
• An amendment (agreed on division), which would remove the High Court’s restrictions on its discretion to grant a remedy for non-compliance with environmental law in Environmental Review cases. The amendment would instead set a number of factors that the High Court must have regard to in granting a remedy.
• An amendment (agreed on division) to insert a duty on sewerage undertakers to take all reasonable steps to ensure untreated sewage is not discharged from storm overflows into inland and coastal waters. In relation to this provision the Government has subsequently announced its intention to table another amendment in lieu when the Bill next returns to the Commons. A Government press release states the proposed amendment will “see a duty enshrined in law to ensure water companies secure a progressive reduction in the adverse impacts of discharges from storm overflows.”

Government amendments in lieu (previously introduced in the Commons), in relation to charges for single-use items and conservation covenants were agreed-to by the Lords.

The Bill was reprinted as Bill 180 2021-22, showing the Lords non-insistence, disagreement, agreement, amendments in lieu and amendments to Commons amendments.

Commons consideration of Lords messages: 8 November

The House of Commons considered the Lords’ messages on 8 November 2021. It considered amendments on three main outstanding areas to resolve. It:

• Insisted (on division), on Government amendments (that were previously disagreed by the Lords), in relation to the power and process for the Secretary of State to issue guidance to the OEP on the matters concerning its enforcement policy.
• Agreed Government amendments in lieu (without division), to remove the restriction on the High Court’s discretion to grant a remedy in relation to environmental review proceedings. The amendments also add the condition that, in certain circumstances, the remedy must be necessary in order to prevent or mitigate serious damage to the natural environment or to human health, and there is an exceptional public interest reason to grant it.
• Agreed Government amendments in lieu (on division) to require water companies (sewerage undertakers) to secure a progressive reduction in the adverse impacts of discharges from storm overflows. This amendment was in lieu of that tabled in the House of Lords by the Duke of Wellington to take all reasonable steps to ensure untreated sewage is not discharged from storm overflows.

The Bill was reprinted as HL Bill 63, showing Commons insistence, disagreement, amendments in lieu and reasons.

Lords consideration of Commons messages: 9 November

The House of Lords considered the Commons messages on 9 November 2021. At this sitting all outstanding issues relating to the Bill were resolved, as follows:

• OEP independence: the House of Lords agreed to add to the Bill the Government amendments which require that a draft of the Government’s OEP enforcement policy guidance must be laid before Parliament and Northern Ireland Assembly. The Lords did not insist on its own, related amendment here which had granted the OEP complete discretion in the carrying out of its functions, which was not added to the Bill.
• Environmental review: the House of Lords agreed to add to the Bill the Government amendments to remove the restriction on the High Court’s discretion to grant a remedy in relation to environmental review proceedings. These amendments also added the condition that, in certain circumstances, this must be where the remedy is necessary in order to prevent or mitigate serious damage to the natural environment or to human health, and there is an exceptional public interest reason to grant it.
• Storm overflows: the House of Lords agreed to add to the Bill the Government amendments which require water companies (sewerage undertakers) to secure a progressive reduction in the adverse impacts of discharges from storm overflows. The Lords did not insist on the amendment tabled previously by the Duke of Wellington to have required water companies to take all reasonable steps to ensure untreated sewage is not discharged from storm overflows. This was not therefore added to the Bill.

Royal Assent

The Bill was granted Royal Assent on 9 November 2021, meaning that it is now an Act of Parliament, the Environment Act 2021.