Motion A Moved by Lord Goldsmith of Richmond Park That this House
do not insist on its disagreement with the Commons in their
Amendments 31A and 31B on which the Commons have insisted for their
Reason 31D, and do not insist on its Amendment 31C in lieu to which
the Commons have disagreed for the same Reason. 31D: Because the
Bill and Amendments 31A and 31B make appropriate provision in
relation to guidance and the independence of the OEP. The Minister
of...Request free trial
Motion A
Moved by
of Richmond Park
That this House do not insist on its disagreement with the
Commons in their Amendments 31A and 31B on which the Commons have
insisted for their Reason 31D, and do not insist on its Amendment
31C in lieu to which the Commons have disagreed for the same
Reason.
31D: Because the Bill and Amendments 31A and 31B make appropriate
provision in relation to guidance and the independence of the
OEP.
The Minister of State, Department for the Environment, Food and
Rural Affairs and Foreign, Commonwealth and Development Office
( of Richmond Park) (Con)
My Lords, this is a momentous month for the environment. We are
hosting the world at COP 26, the world’s best chance to reach
agreement on the action needed to avert catastrophic climate
change and support those already experiencing its effects. Huge
global progress has already been made in this forum. Over 130
countries representing more than 90% of the world’s forests have
committed to halt and reverse deforestation by 2030. We have
secured an unprecedented $20 billion to protect the world’s
forests. Financial institutions with assets worth nearly $9
trillion have committed to align with nature. We secured the
commitment from the big multilateral development banks, including
the World Bank, that they too will align their portfolios not
only with Paris goals but with nature as well. And, crucially, we
secured a commitment from the 12 biggest buyers of agricultural
commodities—including China Oil and Foodstuffs Corporation—that
their buying policies will be aligned with 1.5 degrees and our
overall deforestation goals. Each of these commitments is new and
unprecedented; combined, they are mutually reinforcing, and this
represents a turning point in our relationship with the world’s
forests. Our job is now to inject real accountability into the
process and to ensure that these promises are kept in full. This
landmark Environment Bill, which we hope is now so close to its
conclusion, will be an integral part of that action.
Noble Lords will have seen that this Government have moved
significantly on a number of the issues which your Lordships’
House insisted on at Third Reading. I will begin by discussing
Amendments 31C and 75C, tabled by the noble Lord, , and the noble Baroness, Lady
Ritchie of Downpatrick, and Amendments 31A, 31B, 75A and 75B
which have been re-tabled by my honourable friend Minister Pow in
the other place.
I thank the noble Lord, , the noble Baronesses, Lady
Parminter, Lady Jones of Whitchurch and Lady Ritchie of
Downpatrick, and my noble and learned friend , for their work in
this important area. I thank the noble Lord, , in particular for his
conversations with me and with the Secretary of State on the
power in the Bill to offer guidance to the OEP. As a direct
result of those conversations, there are a number of points that
I would like to put on the record today, in the knowledge that
ministerial statements in Hansard could be drawn on by the courts
as a legitimate aid to statutory interpretation in the
future.
The OEP is and must be an independent body capable of holding
public authorities to account on their environmental
responsibilities, including through the use of their enforcement
functions. That is why the Government have given the OEP a remit
and powers of unprecedented breadth in this Bill. In order for
the OEP to work effectively, it must act strategically and take
action only when there is an environmental and public interest in
doing so. On this point, everyone is agreed.
As the Secretary of State is ultimately accountable for the OEP’s
performance and use of public funds, the Government consider that
this accountability power in Clause 24 is necessary to ensure
that the body continues to use public resources effectively to
achieve the greatest public good. However, I must be clear that
the content of guidance is limited to the areas of the OEP’s
enforcement policy listed in Clause 22(6). It cannot be used to
direct the OEP as to the content of any report they might produce
or any advice to the Government. Indeed, it cannot be used as a
power of direction at all. It would also be inappropriate for the
Secretary of State to issue guidance on specific matters relating
to the enforcement of environmental law against the Secretary of
State for Defra, given that there would be a conflict of
interest.
I do not want to be disingenuous: the OEP would be expected to
have regard to any guidance issued, but it retains the ability
and discretion to make its own decisions and is not bound to act
in accordance with the guidance where it has clear reasons not to
do so. I know that the noble Lord, , and others have previously
raised concerns that the Secretary of State might be able to use
guidance to preclude the OEP investigating a broad category of
individual cases or subject areas, such as nuclear power
stations. I must say unequivocally that it is our view that the
power could not lawfully be used in this way.
Any guidance issued must be consistent with the duty in paragraph
17 of Schedule 1 for the Secretary of State to have regard to the
need to protect the independence of the OEP. Any guidance that
diverts OEP scrutiny away from entire policy areas, outside
existing statutory steers on prioritisation, would not be in
keeping with that duty. This is not a power that could be used
simply to divert the OEP away from investigating issues that
could be in some way inconvenient to government. The provision
for guidance on how the OEP intends to exercise its functions
means that the guidance will in its nature be on the OEP’s
approach to these issues, rather than defining specific areas to
prioritise or deprioritise.
The OEP will operate with a very high degree of independence,
especially when it comes to making individual enforcement
decisions. In exercising its discretion in individual cases, the
OEP would need to have regard to all relevant factors, but
ultimately must take all its decisions objectively, impartially
and independently of government.
Furthermore, the Environment Bill already provides that the OEP
should focus on cases that have national implications. Guidance
could not be issued that goes against these existing provisions
and could instead add further detail. However, it will remain up
to the OEP, within the framework provided by the Bill and any
guidance, to determine whether cases that have a discrete local
impact also have national implications, or for some other reason
have sufficiently broad or widespread impact to be considered
serious, or to be prioritised, for the purposes of its
enforcement functions.
It is important to note that the Secretary of State is also able
to offer guidance on how the OEP should respect the integrity of
other bodies and existing statutory regimes. With such a huge and
broad remit, the OEP will be able to scrutinise all public
authorities, including many expert scientific bodies. This
ability will be important for the OEP to be able to take a broad
view and identify systemic issues.
Although I am sure the OEP will be extremely effective, it will
be a relatively small body with a broad remit. The decisions of
organisations such as Cefas, for example, which employs hundreds
of world-leading marine scientists, will be based on deep
expertise and often highly technical scientific data. The OEP
will need to be mindful of this in its own decision-making when
scrutinising these bodies. It is important to get this balance
right to maintain confidence and integrity within existing
regimes, and guidance could help to address this.
We believe that this power is important to ensure accountability,
so that the OEP can contribute to delivering environmental
improvements in the way I think we all agree it should: by acting
strategically, not just in the short term, but long into the
future. I can also confirm that this Government will not issue
guidance to the OEP before its initial set-up or before it has
had the chance to develop its own enforcement policy.
I recognise the points that noble Lords have raised, which is why
the Government previously reintroduced a provision for Parliament
and the Northern Ireland Assembly to scrutinise any draft
guidance before it is issued. I hope my assurances regarding what
this power could and could not be used for, as well as the
additional parliamentary scrutiny we have provided for, serve to
reassure noble Lords about this provision.
Turning to Amendments 33B and 33C, I thank all noble Lords for
their contributions on this topic, but in particular the noble
Lord, , for his detailed
and continuously constructive conversations with me and my
officials. On environmental review, the key area of debate has
been the remedies available in the event that a breach of
environmental law is confirmed by the court. At the heart of this
issue has always been the fact that, through environmental
review, the OEP will have the ability to bring cases to court
outside standard judicial review time limits, potentially long
after the decisions in question have been taken. For this reason,
the Government have maintained that bespoke provision is
necessary to ensure certainty and fairness for third parties who
have acted in line with decisions made by public bodies, and to
protect good administration.
15:45:00
The OEP may pursue cases for enforcement action only if it
considers that the conduct in question would constitute a
“serious” failure to comply with environmental law. Clause 23(7)
states that the OEP must have regard, among other things,
“to the particular importance of prioritising cases that it
considers have or may have national implications”.
While the OEP will have discretion to interpret these criteria,
setting out its approach in its enforcement policy, it follows in
the Government’s view that cases which only have a local
concern—for example, the majority of individual planning and
environmental permitting decisions—are unlikely to have
sufficiently broad or widespread impact to be prioritised. The
OEP could pursue such cases if it considers them indicative of a
broader or more systemic issue or failure, or if especially
serious harm has resulted, or may result, from the potential
failure. The OEP, for example, could consider this in relation to
the destruction of a nationally important population of a rare
and protected species, but this should not be the norm.
However, we have listened to and carefully considered the views
and concerns raised in this House and in the other place and
agree that it is important that these protections are balanced
with the need to prevent or mitigate serious environmental harm.
As such, I am pleased to be able to propose an amendment in lieu
which strikes this important balance. In introducing it to your
Lordships, I must repeat my earlier acknowledgement that
ministerial Statements in Hansard could be drawn on by the courts
as a legitimate aid to statutory interpretation in the future, as
I put a number of points firmly on the record.
This amendment will ensure that a high bar is still set for the
granting of remedies where third parties may be affected. This is
set out in Condition A of our amendment. However, critically, it
will also provide that, even where Condition A is not met, if the
court is satisfied that it is necessary to prevent or mitigate
serious damage to the natural environment or human health, and
there is an exceptional public interest reason to do so, the
court will be able to grant a remedy. This is set out in
Condition B, which provides the court with discretion to
undertake a real and meaningful, albeit weighted, balancing
exercise. This means that there would no longer be a blanket
prohibition on the granting of remedies where third parties are
likely to suffer substantial hardship or prejudice.
In the rare cases where third parties may be affected, however, I
would like to illustrate how this provision could operate with an
example. Potentially, on an environmental review, the court could
rule that an environmental permit had been granted to a factory
operator with such inadequate conditions that it was unlawful. If
the court concluded that Condition A was not met, because
substantial hardship to the factory operator would be likely to
result from the quashing of the permit, it would then turn to
Condition B. If in the absence of a quashing order it is likely
that the factory would continue to release harmful air pollutants
with serious impacts for the health of the local population,
the court may conclude that it is necessary to grant a
remedy to prevent or mitigate serious damage to the natural
environment or human health.
At this point the court would need to weigh the public interest
in preventing serious harm against the public interest in
preventing substantial hardship occurring to a third party. To
grant a remedy, the court would need to be satisfied that the
public interest in preventing this serious harm substantially
outweighed the interest in preventing hardship, thereby
constituting an “exceptional public interest reason” to grant the
remedy. In cases such as this, where severe damage to the
environment or people’s health could occur or continue if no
remedy was granted, the court may choose to grant a remedy.
Given the types of serious cases the OEP is likely to bring, we
consider that this test strikes the appropriate balance. I have
every faith that it will do so, and that this amendment will
therefore serve to be a valuable addition to the OEP’s
enforcement framework as a whole. I hope that this amendment
serves to provide reassurance that the Government are thoroughly
committed to protecting against environmental harms through the
OEP’s enforcement functions. On this basis, I hope that noble
Lords can support this amendment so that we can proceed to
finalise the Bill, establish the OEP in law and enable it to
begin its important work.
Finally, on Amendment 45B, tabled by the noble Duke, the , and Amendments 45C and
45D, tabled by in the other place, I recognise
at the outset the enormous efforts of the noble Duke, the , the noble Lord, , the noble Baroness, Lady Quin,
and my noble friend Lady Altmann in their work on this issue.
I am pleased that the Government’s amendment in lieu, which I
announced on 26 October, was agreed yesterday in the other place.
The frequency with which sewage is discharged from storm
overflows into our waters is of course absolutely unacceptable. I
want to be clear with the House that there have been some
factually incorrect claims online that the Government are somehow
through this Bill legalising sewage dumping; that is not only not
true but very clearly the opposite of the truth. Claims to that
effect are factually inaccurate and undermine the integrity of
this debate.
I am pleased to confirm that our new amendment says that water
companies
“must secure a progressive reduction in the adverse impact of
discharges”
from their storm overflows. The word “must” means that we are
placing a direct legal duty upon water companies to do this.
Water companies face a choice: reduce sewage discharges or face
the consequences of strong enforcement action.
Turning to the specific amendment from the noble Duke, the , we have redrafted it
to ensure both proper legal effect and more effective
implementation, and we have gone further in places. My
counterpart in the other House has had many discussions with the
noble Duke in recent days and weeks, and I would like to
reiterate some of the points that she has made for the benefit of
this House.
First, this amendment is a clear duty on water companies to
deliver improvements, which the noble Duke pressed for throughout
the passage of the Bill. Indeed, our amendment contains a
stronger duty than in his initial wording; it will ensure that
they have to take the necessary steps relative to the size of the
problem.
We have taken the “progressive” reduction wording directly from
the Lords’ amendment. “Progressive” means that water companies
must continue to take action even after the next price review
period and even after they have achieved a significant reduction
and tackled high-priority sites, as required in the draft policy
statement to the regulator, Ofwat.
We have also gone further than the noble Duke’s amendment in
other areas. First, our amendment clearly specifies that “adverse
impacts” includes impacts both on the environment and on public
health. I know the noble Duke was particularly interested in
enforcement, and rightly so. Our version goes further because it
will dock in with the existing enforcement regime in the Water
Industry Act. This means that Ofwat can issue enforcement notices
to direct specific actions, or fine companies up to 10% of their
annual turnover, which could run to many millions of pounds. The
Government will also be able to take enforcement action and we
will not hesitate to do so if we do not see sufficient progress.
Furthermore, the OEP will be able to take enforcement action
against the Environment Agency, Ofwat or the Government should it
feel that any of us are not adequately discharging our
duties.
I extend my thanks very sincerely again to the noble Duke, the
, for championing the
cause of our rivers, and I hope that he will now be able to
support our amendment today. More broadly, I acknowledge the
exceptional work on the Bill by all noble Lords, whose scrutiny
and advice has led to it being immensely strengthened, with new,
world-leading measures added to it. This is a testament to the
cross-party working, dedication and expertise of noble Lords in
protecting our natural environment. Noble Lords have improved our
Bill immeasurably, and I hope that, like me, they want to see it
pass into law today, as the world is watching from Glasgow. I beg
to move.
Motion A1 (as an amendment to Motion A)
Moved by
Leave out from first “do” to end and insert “insist on its
disagreement with the Commons in their Amendments 31A and 31B on
which the Commons have insisted for their Reason 31D, do not
insist on its Amendment 31C in lieu to which the Commons have
disagreed for the same Reason, and do propose Amendment 31E in
lieu—
31E: Clause 24, page 14, line 30, leave out subsections (1) and
(2) and insert—
“(1) The OEP has complete discretion in the carrying out of its
functions and in preparing and publishing its budget (but subject
to this section).
(2) The Secretary of State may issue guidance to the OEP on the
matters listed in section 22(6), but this should not include
matters relating to the enforcement of environmental law against
the Secretary of State for Environment, Food and Rural
Affairs.
(2A) The OEP must have regard to the guidance in preparing its
enforcement policy, unless there are material considerations that
indicate otherwise.””
(CB)
My Lords, I thank the Secretary of State, the Minister and the
Bill team for the very helpful discussions that I have had with
them throughout, and particularly during the last week. In spite
of this, here I am with a further amendment, and I feel slightly
embarrassed to be pressing yet again on the matter of the
independence of the OEP. However, the strength of opinion across
this House was clear at the first stage of ping-pong, when my
amendment passed with a majority of 51.
The Government clearly have an umbilical attachment to the
guidance powers in Clause 22, and my amendment makes a major
concession in that it does not seek to remove the guidance power.
I expect that there will be some noble Lords who believe that
this concedes too much. However, the proposed new subsection (2)
in the amendment would introduce a specific constraint on the
Secretary of State in issuing guidance, namely that guidance
cannot be issued on
“matters relating to the enforcement of environmental law against
the Secretary of State”.
The aim of this subsection is to prevent the Secretary of State
having a conflict of interest. Without it, he or she could, in
effect, mark their own homework.
The proposed subsections (1) and (2A) of my amendment state that,
in spite of any guidance, the OEP
“has complete discretion in the carrying out of its
functions”,
and that, while it
“must have regard to the guidance”,
the OEP does not have to follow it if
“there are material considerations that indicate otherwise.”
These subsections are designed to ensure that the OEP has the
operational independence that we all want, in spite of the
guidance power.
I turn to the Minister’s opening speech and quote back two key
sentences. The first is:
“It would also be inappropriate for the Secretary of State to
issue guidance on specific matters relating to the enforcement of
environmental law against the Secretary of State for Defra, given
that there would be a conflict of interest.”
The second is:
“the OEP would be expected to have regard to any guidance issued,
but it retains the ability and discretion to make its own
decisions and is not bound to act in accordance with the guidance
where it has clear reasons not to do so.”
Although the wording is slightly different from my amendment, the
implications of the points made in the Minister’s speech are more
or less identical. I hope that, later in this debate, the
Minister will confirm that my interpretation is indeed correct.
The only piece that is left out is the OEP setting its own
budget, but there are some other safeguards in other parts of the
Bill.
I consider it a great pity that the Government were not prepared
to accept my amendment, as the Minister’s speech implies that its
intent has indeed been accepted. However, as the Minister stated
at the start of his speech, ministerial statements in Hansard
could be used by the courts in future as an aid to statutory
interpretation. I look to the lawyers, because it is well above
my pay grade to judge the value of that statement and, therefore,
whether what we have heard is a sufficiently robust protection
for the OEP’s independence.
The Minister also made three other important points that respond
to earlier concerns expressed about the guidance power. First,
the guidance power could not be used to preclude the OEP from
investigating a broad category of cases. The example I used in an
earlier debate was new nuclear power stations. Secondly, it is up
to the OEP to decide whether cases have national implications.
For instance, a case that has specific and local implications,
such as the destruction of a unique habitat, could also be of
national significance. Thirdly, the Secretary of State will not
issue guidance to the OEP before the initial setup and before the
OEP has had a chance to develop its own enforcement policy.
I thank the Minister for his speech. I believe that we have
converged on a way forward that protects the operational
independence of the OEP. The solution may not be perfect, but it
gives me some reassurance on this absolutely central plank of the
Bill. I beg to move.
of Dillington (CB)
My Lords, it appears that there has been some sort of
rapprochement—albeit, I suspect, reluctant. On the one hand are
us, from all sides of the House of Lords, who wish to see a
strong and independent OEP; on the other side is the current
Defra team, which still, I get the impression, wishes to guide
its activities as far as is politically possible. It would appear
that we are gradually getting closer together. Sadly, however, we
are not seeing a total volte-face by the Government, as we have
over sewage and CSOs—or, for that matter, on breaches of
parliamentary rules on lobbying.
Unfortunately, the independence of the OEP, a body that has yet
to exist, is a concept too esoteric for the public to even know
about, let alone to get hot under the collar about. If they knew
about it, bearing in mind the Government’s behaviour in recent
weeks, I should have thought that they would be concerned that
future Secretaries of State could be exercising guidance over
this body, whose primary function, let us face it, is to hold the
Government, its Ministers and their quangos to account.
As my noble friend said, his Motion A1 is very much
in line with what my good friend , the Minister in the other
place, has already said on the Floor of that House, as echoed by
the Minister in this House today. It would have been good to get
it on the face of the Bill to make the sentiment more certain
and, above all, more durable, because that is really what
matters. Bearing in mind that we are unlikely to get another
environment Bill for some decades, I for one would have preferred
us to move beyond just the commitments of this excellent team of
Ministers and to a properly constituted, independent OEP that
will stand the test of time. However, although I strongly support
the amendment in the name of my noble friend , I recognise that the
rapprochement we have achieved is now probably as far as we are
going to get.
16:00:00
(Lab)
My Lords, I support the amendment in the name of the noble Lord,
. While I agree with the noble
Lord, of Dillington, that we have
achieved some rapprochement, I was looking for total independence
for the office for environmental protection and the consequences
of that for Northern Ireland. While welcoming the progress, I am
therefore still disappointed that the Government have rejected
attempts to strengthen the independence of the office for
environmental protection in law. I felt that needed to be placed
on the face of the Bill.
I have carefully read what the Minister in the other place,
, said yesterday on this
important matter and note that she put some helpful statements on
the record, including to confirm that the Government have no
intention of issuing guidance before the OEP is up and running
and has developed its own enforcement policy. She also recognised
the conflict of interest inherent in this guidance power
involving the implementation of environmental law by the Defra
Secretary of State.
While these are welcome statements, my fear is that they could be
forgotten or ignored by future Secretaries of State. I repeat the
point made in several debates on the importance of
future-proofing. I recall that I had amendments about the need
for the independence of the OEP in Northern Ireland in Committee,
on Report and during the last ping-pong. My great wish remains
for such assurances to be written into the Bill, but sadly—like
the noble Lord, of Dillington —I believe we
have achieved as much as we possibly can. Regardless of the
outcome of this debate, I will write to the DAERA Minister in
Northern Ireland to ask for similar assurances to be
provided.
I ask the Minister here to tell the House whether he is confident
that the Bill and this OEP will be totally accountable, and what
discussions he has had with the DAERA Minister in Northern
Ireland regarding the accountability of the OEP. We have a
five-party Executive in Northern Ireland, and it is not always
easy to achieve consensus on a wide range of issues. I would
welcome answers to those questions.
(CB)
My Lords, having pestered the Minister since well before Second
Reading for meaningful judicial remedies on environmental review,
I will speak to Motion B and Commons Amendments 33C and 33D,
which I believe are the product of negotiations between a variety
of departments —some of them powerfully opposed to what they see
as constraints on development.
While I thank the Minister and his colleagues at Defra for
shouldering that task, I sense that the imprint of the Treasury
and the Department for Levelling Up, Housing & Communities is
visible on the end result. The good news is that the courts are
now to be trusted with a discretion over whether to grant a
remedy, even if substantial hardship or prejudice may be caused
to developers or other third parties. The bad news is that this
discretion is, as the Minister has said, weighted in favour of
the developer. Uniquely in our law, the court will be barred—save
for an exceptional public interest reason—from granting a remedy
in such cases, even if it is satisfied that a remedy is necessary
to prevent serious damage to the environment or to public health.
The Minister’s example of the harmfully polluting factory makes
just that point.
The noble and learned Lord, Lord Mackay, spoke in Committee of an
underlying feeling that environmental law is to be
“a grade below some other laws so that, although you fail to
comply with it, you can still be all right”.—[Official Report,
30/6/21; col. 815.]
I regret that, while this amendment does achieve a limited
upgrade for environmental law, a good deal of truth remains in
his comment.
It was tempting—but would in the end have been futile—to fight on
so, making the best of it, I end with two positive remarks.
First, I draw attention to the helpful indication that the
Minister has just given about what is intended by the obscure
phrase “exceptional public interest reason”. By his own account,
such a reason will exist whenever the public interest in
preventing serious harm to the environment or to human health
substantially outweighs the interest in preventing hardship to a
third party. Less benign interpretations of that phrase might
have been imagined, so I am grateful to him and his counterpart
in the other place, , for their clarity and their
express acknowledgment that their statements may in future be
drawn on by the courts as a legitimate aid to statutory
interpretation under Pepper v Hart.
Secondly, I take comfort in the fact that even after what we must
assume to be the passage of the Judicial Review and Courts Bill,
the full panoply of court remedies will remain available on
judicial review—if not at the suit of the OEP, which will be
allowed to bring judicial review proceedings only in urgent
cases, then at least to other claimants with a sufficient
interest. In that context, I note the Government’s view,
expressed from the Dispatch Box on 30 June, that
“the OEP’s complaints and enforcement functions would not affect
the rights of other persons to bring legal challenges against
public authorities by way of a judicial review”.—[Official
Report, 30/6/21; col. 823.]
In those circumstances, with profound thanks to the noble Lords
from all parties and none who have signed and supported various
amendments on this theme, and to the Minister and the Bill team,
I offer a qualified but sincere welcome to Amendments 33C and
33D.
(Lab)
My Lords, I will speak specifically on Motions A, A1, B and D. My
noble friend Lady Quin will then return to Motion C later in the
debate. I thank the noble Lords, and Lord Anderson, for their
perseverance and commitment to achieving proper OEP independence
and enforcement powers. As we have said repeatedly, these
measures are necessary to ensure that the environmental standards
set out in this Bill, and indeed elsewhere, are protected for the
longer term. I am also grateful to the Minister and the Bill team
for listening and engaging on the issues that we have raised.
However, what we have before us today is not ideal, and we
believe that the Government could have gone further to amend the
Bill to give the assurances for which noble Lords across this
House have repeatedly pressed. Throughout the process, we have
supported the noble Lord, , in his determination to protect
the independence of the OEP. This has been a fundamental issue
and we continue to support Motion Al, which he has tabled today.
We believe, as his amendment sets out, that the OEP should have
complete discretion to carry out its functions free from the
interference of government.
In this context, there have been a number of areas of detail
which have been helpfully clarified by the Government in the
Commons and, again, in this Chamber by the Minister today. For
example, despite the Government’s insistence on the right to
issue guidance to the OEP, we welcome the recognition that this
should be limited to the areas of OEP enforcement policy listed
in Clause 22. Quite rightly, it has been made clear that the
Secretary of State cannot issue guidance on enforcement issues
against the Defra Secretary of State, as this would be a clear
conflict of interest. It has also been helpfully clarified that
it would be within the scope of the OEP’s remit to investigate
broad categories of individual cases that might have a common
theme. This includes cases that have a discrete local impact but
national implications.
We also reiterate our support for the proposal that Parliament
should scrutinise the draft guidance before it is issued. All
this goes some way to providing reassurance on an issue that we
nevertheless believe continues to represent a flaw in the overall
construct of the legislation. Can the Minister also assure us
that before the Government publish any draft guidance, they will
consult the OEP? Can he also assure us that the framework which
will be agreed with the OEP will also set out its commitment to a
five-year indicative budget? These are issues which the Minister
will know are outstanding from earlier debate.
On the issue of enforcement, we welcome the tabling of the
Government’s amendments to Clause 37(8), which address the
concerns that the threshold for achieving a successful judicial
review was insurmountable and anyway gave precedence to the
interests of third-party polluters rather than those of the
environment and the community. The amendment recognises that, on
occasions, granting a remedy to address behaviour or damage will
be necessary even if it may cause substantial hardship to the
rights of a third party.
We have argued from the beginning that the courts should have the
discretion to weigh all these factors equally in the balance. The
Government’s amendments do not achieve that objective, but
nevertheless we support the noble Lord, Lord Anderson, in the
view that this compromise wording is a step forward and the best
that we will get at this stage of the process. No doubt the exact
meaning of “the exceptional public interest” test will be played
out in the courts in years to come, and we very much hope that
the widest possible interpretation of it will become the
norm.
The Minister will not be surprised to hear that we still have
reservations about the final wording in the Bill on these issues,
but nevertheless, we accept that progress has been made, and hope
that he can reassure us on the remaining outstanding questions
about the OEP’s independence.
The (CB)
My Lords, I speak to Motion C, introduced by the Minister.
Members of both Houses of Parliament and the public have become
increasingly aware during the passage of this Bill that our
rivers, of which we are so proud, are being despoiled every day
by sewage discharges, both legal and illegal. The BBC and
national newspapers have carried so many disturbing stories and
even Ministers have learned to what extent our aquatic
environment is being continuously mistreated.
I thank the Government for tabling in the other place the
amendment in lieu, which the House of Commons passed last night
by a large majority. I also thank , the Environment Minister, for
discussing the amendment with me last Thursday and I thank
several Ministers and the Secretary of State for various meetings
which we have had in recent weeks.
Since this House passed the cross-party amendment on 26 October,
which placed
“a duty on sewerage undertakers to take all reasonable steps to
ensure untreated sewage is not discharged”,
there has been considerable public support for this wording. Even
Water UK, the industry body which represents the water companies,
put out a statement the following day that MPs should back the
Lords amendment to strengthen the Environment Bill. I was
surprised by this as I had assumed that the water companies would
oppose my amendment, but they want the Government to go further.
Specifically, they want the Government to instruct regulators—I
assume that means Ofwat—to authorise investment in sewers. From
the Minister’s words when moving the Commons amendment, it
appears that the Government will be giving suitable directions to
Ofwat. The government amendment requires by law that the water
companies secure a progressive reduction in the adverse impacts
of discharges. I particularly welcome the reference to “public
health” in the new amendment.
16:15:00
Part of the problem at the moment is that there are very few
prosecutions. My original amendment would have required the
Secretary of State and the regulators to exercise their powers of
enforcement. The Government have chosen to reword this. Now, the
duty on the water companies is enforceable by the Secretary of
State and others, and I was pleased to hear the Minister in the
other place, and indeed the noble Lord, , state that Ofwat and the
Government will not hesitate to take enforcement action and are
able to fine water companies up to 10% of their annual turnover.
In addition, the office for environmental protection will be able
to take enforcement action against the Government, the
Environment Agency or Ofwat if it feels they are not adequately
discharging their duties.
I cannot disguise my concern that the new government amendment is
weaker in certain respects than my own, but the Minister’s
statement last night and the noble Lord’s from the Dispatch Box
this afternoon have greatly strengthened the amendment. It is
interesting that both in the other place and here the Ministers
have specifically said that they wish to put a number of points
on the record in the knowledge that ministerial statements in
Hansard could be drawn on by the courts as a legitimate aid to
statutory interpretation in future.
I regret that I cannot support Motion C1 in the name of the noble
Lord, . Although it is worded very
similarly to my amendment from last week, the Government’s
amendment takes on so many of my points. I hope the Minister will
acknowledge that they have been pushed to this point by strong
opinions in both Houses of Parliament and in the country. In
fact, it is surprising that Governments of both parties have
allowed the pollution of our rivers to continue for so long and
to such a degree.
As a result of improvements to this Bill, Parliament and the
public will be better informed about sewage discharges, and the
Government will have the power and, we hope, the will to take
action. It will be a measure of the success of this part of the
Bill if these discharges are dramatically reduced in the near
future. Ministers are now required to report to Parliament on
progress, and I know that we will want to hold Ministers to
account on this matter.
Pollution of our rivers by sewage is a national embarrassment; I
hope that these clauses in this Environment Bill will bring it to
an end. I conclude with this thought: our children and
grandchildren will surely be surprised that we allowed this
revolting state of affairs to continue for as long as it did.
(GP)
My Lords, my coughing is not Covid, in case anybody is
concerned.
I am so sad and disappointed that we have got to this place: we
are under pressure, because of the primacy of the other place, to
pass a Bill that is not as good as the one we amended. It seems
that the Government do not understand what they have done in
stripping out some of the safeguards we have put in. This will
come to haunt MPs, because people will not forget the campaign to
stop the sewage discharges into our rivers. Some people were also
concerned about the office for environmental protection. This
will not be forgotten.
I know the Minister said that this was not true, but I would
argue that the Government have legitimised the sewage discharges
that will be happening from now on. There is no timetable and
there are no targets. Quite honestly, it seems that the
Government do not understand the pressure that is coming from the
grass roots—from dog walkers, fishing enthusiasts, Surfers
Against Sewage and wild swimmers, who have seen this and really
care about it. We have returned to the 1970s version of ourselves
as the “dirty man of Europe”.
I hope that the Government will now admit the deliberate
confusion that they created about the cost of stopping any
further discharges. The figure—was it £60 billion or £600
billion?—that they put forward was absolutely outrageous; of
course, they quickly withdrew it when people started to check.
The Government could loan the money to the water companies to put
in the infrastructure that we need to prevent discharges in a
relatively short space of time. However, that would mean, of
course, that those water companies could not pay dividends to
investors, senior people and shareholders until the debt was paid
off. If we had a tough regulatory system, the scandal would never
have been able to escalate in the way that it has. It has been a
failure of the Government, Ofwat and the Environment Agency and,
unfortunately, the Environment Bill does nothing to deal with our
relatively toothless system of enforcement.
I had hoped that we would be able to pressure the Government even
more. Quite honestly, if any votes are put this afternoon—I
cannot give up—I will vote for them, because the Government have
still not achieved what we hoped would be achieved and what the
general public want us to achieve: a cleaner Britain. I am hoping
that the Government will at some point come forward with more
safeguards, but at the moment I am not holding my breath and, as
I said, I will vote for any amendments that are pressed.
(Con)
My Lords, I take this opportunity to congratulate the noble Duke,
the , on bringing us this
far and I add my congratulations to my noble friend the
Minister.
I want to ask two small questions. My noble friend said that he
would look for the water companies to achieve a progressive
reduction in the discharge of sewage over a period and admitted
that this would go beyond one price review. As we are so far into
the current price review, what will the level of expenditure be
within this review, and does he admit that the majority of
expenditure will probably fall in the next price review?
He is aware of my concern about the delay in introducing the
regulations under Schedule 3 of the water Act 2020. Does he not
share my concern that we will still potentially be front-loading
raw sewage as surface water will be allowed to mix with the
overflow from the combined sewers, pumping more raw sewage into
the rivers? I am deeply unhappy that we have not yet fulfilled
one of the outstanding requests of the Michael Pitt report from
2007, when surface water flooding first became an issue, and even
after the awful floods that we have had since. We have not
managed to achieve an ending to the automatic right to connect
and, until these regulations are introduced, we will not do
so.
Is my noble friend able to put a timetable on when these
regulations will finally come into place, so that we can have a
pincer movement on the raw sewage going upstream and downstream,
as addressed by the amendments before us this afternoon?
(Lab)
My Lords, I will speak to Motion C1. I know enough about military
strategy to know that where a does not lead a forward
manoeuvre, it may be unwise to try to advance when he is not
leading. So I am very mindful of the views of the House, and
other noble Lords will speak before I decide whether to press
Motion C1.
The point he made, which I think still holds, is that, although
there has been movement on the part of the Government, in two key
respects—the scope of the duty on water companies and the
timescale in which it is intended to be met and in which we are
intended to see improvements—the amendment that the Government
have moved is unsatisfactory. I think there is general
recognition in the House that we are not talking about a minor
matter. We are talking about 400,000 discharges of raw sewage
into Britain’s rivers in the last year alone. All the evidence is
that the number is increasing, not reducing. We are not moving in
the right direction; we are moving in the wrong direction and
indeed, because of the impact of Brexit and the supply chain
problems and all of that, and the shortage of relevant chemicals,
the Environment Agency has issued formal advice exempting water
undertakings from having to meet their prior conditions.
The noble Duke’s first amendment referred to taking “all
reasonable steps”, which would imply a short timescale, and my
amendment refers to
“a period specified by the Secretary of State”
in which defined objectives are to be met. My question to the
Minister, which I think will be of great importance to the House
since there is no reference to any timescale in his amendment,
is: in what timescale does he envisage that there will be
significant reductions in sewage discharges?
The second issue relates to scope. The noble Duke’s amendment put
a direct duty on water companies to improve the performance of
sewerage systems to get at the heart of the problem—inadequate
sewage treatment facilities to reduce discharges of raw sewage.
Now, the Government’s amendment refers to reducing
“the adverse impact of discharges”,
which is an indirect duty and does not require at all,
necessarily—but certainly not in a defined timescale—significant
improvements in the performance of sewerage systems. I ask the
Minister why the Government are so focused on the indirect
impacts—which we accept are important, and the noble Duke
referred to that—rather than a direct duty on water companies to
improve the performance of their sewerage systems?
A final point of some significance is: who can enforce this duty?
Because, as everyone has accepted, without enforcement the duty
will probably go unfulfilled. Philip Dunne—to whom we pay tribute
and who has done great work in the other place on this issue—in
his speech yesterday referred to his continuing concerns about
enforcement, particularly in the context of a cut in the
Environment Agency’s staffing and budget of two-thirds in the
last 10 years, which has dramatically reduced its capacity to
enforce or indeed even to inspect—and of course, unless you have
inspected, you cannot enforce.
The noble Duke’s amendments would have given any individual or
body corporate the power to enforce or to bring enforcement
action or legal action because of the non-fulfilment by a water
company of the duty. I think in particular of local authorities.
Of course, it is local authorities that best know what is going
on in their area and have the professional staff who are able to
make assessments. Under the Government’s amendment, only the
Secretary of State and defined state institutions can hold water
companies to account for the enforcement of their duties. That is
a very significant limitation on the noble Duke’s amendment.
So my third question to the Minister is: why are the Government
not prepared to allow local authorities and non-state bodies,
many of which are highly expert in this area, to bring
proceedings against water companies that are not fulfilling the
duty that is now set out in the Government’s amendment?
To me, these are three very significant issues: timescale, the
scope of the duty and enforcement. In all three respects, the
Government’s amendment is wanting at the moment. It does not lead
me to have any expectation that the noble Duke’s aspirations,
which we all share, will actually be fulfilled, because the
timescale for meeting these objectives could be inordinately
long. I look forward to hearing the contributions of other noble
Lords, and in particular of the Minister at the end of the
debate, before I decide whether, even if the noble Duke himself
is retiring from the field, others of us might feel that it is in
the public interest that we should attempt to advance none the
less.
16:30:00
(LD)
My Lords, in response to the public outcry at the Government’s
opposition to the noble Duke’s original amendments, the
Government promised us that they would deliver the wishes of the
public in a new amendment, in keeping with the intentions of the
Duke. That is something that we really should bear in mind today
when we consider the intricacies of the back-and-forth of the
various comments that have been made.
It would have been better if, yesterday evening, our MPs had
stood firm and insisted on clarity and action by Ministers. That
is what is needed to stop our rivers and seas being treated like
an open sewer by the water companies. It is the case that the
public must never again be faced with an annual figure of 400,000
releases of raw sewage into our rivers and seas.
In that regard, I have three quick points to make. Will the
Government confirm that they will, in due course, do three
things? First, will they work with the Environment Agency to
immediately start setting tougher permits for sewage works and
CSOs, and on the monitoring, inspection and enforcement regimes,
by way of ministerial direction? Secondly, will they tell Ofwat
that it has a central role to play in cleaning up sewage using
existing regulations, and will they make Ofwat accountable to
Parliament on an annual basis for progress in reducing sewage
discharges? Finally, will they strengthen current schemes to
generate clear investment plans, backed by resources, to begin
eliminating the worst and most damaging sewage pollution?
I think we all understand that the public will be watching,
particularly in the towns and villages represented by those MPs
who supported the Government so robustly in the other place last
night.
(Con)
Although this is not strictly relevant, I congratulate my noble
friend the Minister on the important international agreement on
rainforest protection in recent days. I am so pleased.
I am content with the government amendments as outlined by my
noble friend the Minister, especially the improved parliamentary
scrutiny that is provided for on guidance. I do not agree with
the noble Baroness, Lady Jones of Moulsecoomb, or indeed with the
proposals of the noble Lord, , which we have not really been
able to debate properly. I think we are on the way to a cleaner
Britain through these proposals, so I am extremely grateful for
them.
However, I have a question for clarification on the new
untreated-sewage provisions, which I do not think has been
covered by what has already been described. How will we know what
is happening in terms of the success of progressive improvements
in sewage disposal into our rivers and the sea? What are the
monitoring arrangements? These are important to all of us and to
the water companies, on which we rely for our water and for
investment, whatever the agreed timetable on the new
proposals.
(Lab)
My Lords, I shall also speak to Motion C. I begin by giving my
renewed congratulations and thanks to the noble Duke, the , for all his efforts,
which have not only caused the Government to concede in various
ways but highlighted the issue to the wider public, so that many
of our citizens who were previously unaware of the extent of
sewage discharges are now very much engaged and determined to see
that these large-scale problems are addressed. It is a pleasure
to have been involved in the cross-party work with the noble
Duke, the noble Baroness, Lady Altmann, and the noble Lord,
. I wish the Government had
included all the elements of the noble Duke’s amendment, but I
recognise some of the commitments that have been included, and
which represent a considerable improvement.
I will make three brief points which I think have not been fully
covered so far. The first point is about cost. There is a lot of
controversy about the costs of the clean-up, and the Government’s
estimates of the costs have been challenged by many people as
being far too large. I hope that the Government, in determining
the costs as they move forward, will consult widely—not just with
the water companies but with all stakeholders and
communities—particularly looking at the claims of some people who
believe that much more can be done quickly and relatively more
cheaply than the Government claim.
For example, the Thames tideway scheme is claimed to be able to
eliminate 90% of storm overflows at a cost of £20 to £25 on
London water bills a year, which is not a huge cost, given some
of the figures that have been bandied around. Many individuals
and environmental groups think that a substantial reduction of
spills can be achieved in the short term without, for example,
having to replace wholescale networks of Victorian sewers. We
need to look at what can be achieved with a fairly modest
increase in water bills.
Secondly, I still believe that we need improved take-up of
technology by the water companies. For example, when looking at
the figures on smart meters and comparing what is happening in
this country with the United States, we can see the introduction
of technology in a much more widespread way in the United
States.
Thirdly, we need a holistic approach to particular rivers and
coastal waters. It makes no sense to upgrade—as sometimes
happens—one treatment works on a river but not another one just a
few kilometres downstream, which means that the environment for
aquatic life improves only for the distance between the two and
there are no proper, fundamental effects. Within an overall
approach, there must also be priorities. I believe that the chalk
streams and the SSSI areas—particularly sensitive coastal areas
and places where there is an effect on health—should still be
very high priorities.
I share some of the frustrations expressed by the noble Baroness,
Lady Jones of Moulsecoomb, particularly when she talked about
European battles of the past. I remember campaigning, a long time
ago, and feeling ashamed that our own country was so far behind
in, for example, the clean-up of waters around our beaches and
coastal areas. It is very depressing that we need to once again
express shame for what is happening in our rivers and coastal
waters today.
In conclusion, I welcome the progress that has been made during
the course of the Bill’s passage, but the issue remains a crucial
one. I hope that the Government will find themselves under close
scrutiny from all parties, across both Houses, to ensure that
they deliver on their promises, and that we will see an end to
the appalling amount of sewage discharges which have occurred in
recent months and years.
(Con)
My Lords, on Motion C, I too congratulate my noble friend the
on all his amendments
throughout the passage of the Bill to which I have added my name.
It has been a pleasure to work co-operatively across the House,
including with the noble Baroness, Lady Quin, and the noble Lord,
.
Indeed, noble Lords’ scrutiny has achieved many important
improvements. I therefore thank our excellent Ministers—my
honourable friend in the other place and my noble
friend the Minister—my noble friend Lady Bloomfield, and the
entire Bill team for their engagement, hard work and willingness
to be persuaded to finally accept the need to place duties on the
water companies. I also commend the work of my honourable friend
in the other place, who did so
much to move this forward.
At last, the Bill places a direct legal duty on the water
companies. The government amendment seems to me to produce what
we and my noble friend the were aiming to achieve
with the most recent amendment. There is considerable public
concern that the Environment Agency is not using its existing
powers, has relied too much on self-reporting and has
consistently tolerated repeated illegal discharges which damage
our waterways and public health. I am grateful to the Government
that they have now specified both the environmental and human
health aspects.
It will also, as other noble Lords have said, be important to
monitor and oversee sewage discharges far more rigorously and to
track and reduce such unacceptable discharges so that companies
do not rely on not being caught as the most cost-effective way to
proceed. I have sympathy with the frustrations of the noble Lord,
, and the noble Baroness, Lady
Bennett, but I believe that, although in an ideal world we would
not want to start from here, we are not dealing with the
situation that we would all wish to see. After years of neglect
and companies having behaved so egregiously, I do not believe
that this can be addressed instantly. Therefore, it will take
time to undo the neglect. I believe that the Government must and
will take the necessary actions, but of course we will see over
time.
Currently, we have two excellent Ministers who are committed to
the aims of the Bill, for which I am most grateful. I also
briefly congratulate the noble Lords, and Lord Anderson, on the
pressure they have put on to improve the independence of the OEP.
Overall, I believe that this House has achieved a significant
amount. We have pushed the Government as far as we possibly can,
and I hope that we will now accept the government Motions and be
rightly proud of this landmark Bill.
(CB)
My Lords, I have rightly stayed silent up to now, having been
content with listening, as I have done throughout. I think noble
Lords are hugely to be congratulated for encouraging and indeed
pushing the Government into a much more favourable position which
I think, as the noble Baroness has just said, we ought to accept.
I remain particularly concerned about one thing: the discharge of
sewage into rivers and chalk streams. How on earth will the
Government really see that this is properly monitored? Because if
it is not monitored, it is a waste of time.
(Con)
Very briefly, I was very keen that all the amendments in your
Lordships’ House, when they went down to the other place a couple
of weeks ago, should be accepted, but we are where we are and it
is a good illustration of a degree of co-operation between the
two Houses. I do wish that the other place would not look on us
as competition, or adversaries, but rather as a complementary
Chamber very much influenced by those with real knowledge and
experience, as has been marvellously illustrated this afternoon
by the speeches of the noble Lords, and , and the noble
Duke, the .
Led by our Cross-Benchers, we have achieved a considerable degree
of improvement to a Bill that started out as a somewhat flawed
flagship. I think now we can take a certain quiet pride. It is
not perfect; it would have been better had more of our amendments
been accepted and had those before us not been doctored a little,
but we must not be churlish. However, I do hope that the other
place will come to regard your Lordships’ House as not a
competitor or an adversary but a complementary Chamber that can
add real value. If one compares the depth of the debate in your
Lordships’ House with what happened rather briefly in another
place, we can be gently satisfied and quietly proud of what this
House has achieved.
It would be churlish to sit down without saying to my noble
friend of Richmond Park that we
appreciate what he has done. However, in future Bills it would be
a good idea if Ministers in your Lordships’ House were given a
little more latitude to be responsive at the Dispatch Box—a
little more authority, because they deserve it, and my noble
friend of Richmond Park has given a
lifetime of service to the causes embraced in the Bill. This is a
satisfactory afternoon and it would be spoiled by any
Division.
16:45:00
(LD)
My Lords, I echo the comments of the noble Lord, , with regard to the Minister
and his team’s unfailing co-operation and ambition for the Bill,
which is the most important Bill on the environment that we have
seen in this country for at least the last 30 years. When it came
to us at Second Reading, all of us welcomed it but said that it
needed to go a lot further. It would be churlish not to reflect
on the fact that it has gone somewhat further, if not as far as
most of us—perhaps including the Minister—hoped we might be able
to achieve.
On the three final hills on which we have chosen in this House to
fight today, we are in the position of having to accept that we
are where we are, given the majority of the Government on the
other side. On the amendment in the name of the noble Lord, Lord
Anderson—he has indeed been a champion redoubtable—on pushing for
remedies for the OEP, that is an incredibly important issue and
it is of deep regret that it will not go into the Bill. However,
I hope, like I am sure other Members around this Chamber, that
the assurances that the Minister has given today can bear fruit
should there be—as I am sure there will—instances in the future
in the courts as these issues are challenged.
On the independence of the OEP, on which the noble Lord, , led so skilfully on behalf of
this House, he is right to say that the Government seem to have
an umbilical attachment to not wishing the OEP to have the
independence that absolutely all in this House agree that it
should. It is of deep regret that that has not made its way into
the Bill. However, I think all of us in this House have
confidence in the current holders of the OEP, and we hope that
they will use the discretion given by in the other place so that they
are not bound to the guidance if there are good reasons for not
taking it forward. I hope that they will make full use of those
powers and challenge the Government should they so feel the
need.
Personally, where I am most concerned that the Government still
have that guidance power to contain the independence of the OEP
is on the issue of planning, which the noble Lord, , mentioned. The Government still
retain the ability to perhaps constrain the OEP from taking
enforcement measures on planning applications, which may appear
local and discrete but have nationally significant biodiversity
implications. Given the fate of the biodiversity in our country
at this time, we know just how important that may be.
Finally, on the issue of sewage, we on these Benches—particularly
my noble friend , who has worked so closely with
other colleagues from other Benches—thank the noble Duke, the
, for the campaign that
he has taken forward, and indeed , who I see is with us this
afternoon. It is good to be able to say to them that we in this
House thank them both for their campaigning to bring this
appalling issue, which is really important for both the
environment and human health, to the attention of the Government
and the public more broadly. On behalf of all of us, I thank both
of them for doing that.
As I say, we have probably pushed the Government as far as they
are prepared to go on this issue. However, in having made the
general public so aware of what is at stake, the Government can
be under no illusion that, while we have done our job here today
and in preceding weeks, if they do not listen, act and take the
necessary steps to stop these appalling sewage discharges, the
public will notice, and it will not just be the environment that
pays the price in the future. The Government will pay the price
at the next general election.
of Ullock (Lab)
My Lords, I will particularly address the amendments from the
Government and in the name of my noble friend on water quality, in Motions C
and C1. First, I thank the Minister and Defra officials for their
time in listening to our concerns throughout the passage of this
Bill. While we welcome the government amendment to improve water
quality, we must be clear that the Government did not want to
include stronger provisions in this Bill to improve and protect
our rivers and waterways, including from sewage discharges. We
have the government amendment before us today because of the
refusal of your Lordships’ House, in the other place and in
particular the noble Duke, the , to give up on
campaigning to protect both our environment and public health.
Once again, the Minister has been dragged back to debate this
because people have been disgusted that the situation was allowed
to continue. The Government truly brought the pong into
ping-pong.
While the government amendment before us today does improve the
Bill, noble Lords have said that they are finding it in some ways
unsatisfactory, as it does not go far enough to address some of
the concerns that have been raised today. The noble Duke, the
, talked about the
considerable public support for his amendment, including from
water companies, which he said just want more public investment
from the Government in order to improve the sewerage system. He
also expressed concern that the government amendment is
considerably weaker than his in some aspects. We strongly
supported the Duke on this issue, and believe that his original
amendment was better than the government amendment before us
today, and it is disappointing that Government refused to just
accept it. My noble friend has now picked this up, and he
clearly laid out his reasons for doing so: his concerns that
discharges have been increasing; that enforcement has not been
what it should be; and that this is partly down to cuts to the
Environment Agency, which have reduced its capacity to both
monitor and take action.
I will now draw particular attention to three concerns raised by
my colleague in the other place. First, on
prosecutions—the noble Duke mentioned their lack—will the
Minister commit to reviewing the system of fines and penalties?
The current penalties clearly do not have the effect of stopping
certain water companies form routinely dumping raw sewage into
our waterways. Penalties must be meaningful so that they change
behaviour, or they are pointless. Water companies and the
regulator, Ofwat, have consistently failed to stop damaging
discharges. They know they that they are currently allowed to
discharge raw sewage only in exceptional circumstances, but take
no notice, which is why penalties and fines must be reviewed.
Southern Water had committed no fewer than 168 previous offences
before being fined this summer.
Secondly, we need to strengthen the duty of Ofwat to take action,
to give water companies a clear direction on targets, ensure that
there is a priority to clean up the most polluting discharges,
and have oversight on progress from the relevant parliamentary
committees. The regulator should have environmental experts
available to strengthen its decision-making.
Thirdly, can the Minister further clarify what is meant by
“progressive reduction”—the timescales mentioned by my noble
friend ? By when, and by how much?
Yesterday, I attended COP 26, as mentioned by the Minister in his
introduction. Much is being made there of the importance of
putting nature and the environment at the centre of policy-making
and legislation. We know that one consequence of climate change
in the UK is likely to be heavier rainfall. Without progressive
reduction being pinned down properly, we are a very long way away
from seeing an end to this persistent pollution.
In yesterday’s debate in the other place, the Minister, , ran out of time to respond to
these questions from my colleague, so I would be grateful if the
Minister could take the opportunity to answer these points today.
I also look forward to his reply to other concerns raised by
noble Lords in this debate, including my noble friend , and whether he can reassure
the noble Duke, the , that there will be
proper parliamentary oversight and progress on ending the
practice of discharging raw sewage into the waterways, because
without proper oversight on progress, it will, as I said, take a
very long time to change this behaviour at all.
I also look forward to the Minister’s response to the questions
from my noble friend Lady Quin and the noble Baroness, Lady Jones
of Moulsecoomb, regarding the true cost of tackling this issue.
If he cannot answer these questions, can he explain why the
Government are refusing to commit to addressing these very real
concerns, which we have raised time and again?
Noble Lords are right: the Bill is in a better place now than
when it started, and that is mainly down to concerns raised by
your Lordships. But it is a shame that the Government have not
been able to completely accept today’s important
improvements.
of Richmond Park (Con)
I thank your Lordships for your contributions to this debate.
This is a landmark Environment Bill, the benefits of which will
undoubtedly be felt by future generations both in the UK and, as
a result of, for example, our due diligence legislation and more
besides, internationally. I thank your Lordships for the
collaborative and expert manner in which you have approached this
Bill. Your constructive support and knowledge have been
invaluable in enabling the passage of this Bill and making it
better than when it first came to this House.
I will begin by addressing points made by the noble Lord, , whom I thank again for sharing
his expertise, time and patience on this important issue, and for
his words today. I am happy to reiterate my earlier statement,
also in response to questions raised by the noble Lord, , and the noble Baroness, Lady
Jones, that, in exercising its discretion in individual cases,
the OEP would of course need to have regard to a range of
relevant factors but ultimately must take all its decisions
objectively, impartially and independently of government.
Furthermore, I am happy to confirm that the Government are
committed to ensuring the operational independence of the
OEP.
The noble Baroness, Lady Jones, asked whether, in preparing the
guidance, we would consult the OEP. The answer is, of course, yes
we would. She also asked whether the framework document that the
Government will agree with the OEP will make explicit reference
to the Government’s commitment to a five-year indicative budget
ring-fenced within each spending review period. The answer is
that the framework document will make explicit reference to the
five-year indicative budget and Defra will provide a ring-fence
within each spending review period, in line with previous
government commitments. It will also add detail that will guide
and give further clarity to the relationship between the OEP,
Defra and the rest of government.
To answer the questions from the noble Baroness, Lady Ritchie, I
assure her that Defra Ministers and officials continue to have
very regular discussions with DAERA, as has my noble friend, who
I see up in the Gallery now, as they have throughout the passage
of this Bill. Northern Irish Ministers have consistently sought
parity as far as possible between the two Administrations with
regard to the OEP. I know that my friend, Minister Pow, will
continue these discussions and will support Northern Ireland in
setting up a fully independent OEP.
Turning to Amendment 33B on the environmental review measure, I
reiterate that the changes made by the Government in the other
place will provide discretion to the court to grant remedies if
it is satisfied that it is necessary to prevent or mitigate
serious damage to the environment or people’s health, and there
is an exceptional public interest reason to do so. They also
ensure that a high bar is still set for the granting of remedies
where third parties may be affected.
I place again on the record my thanks to the noble Lord, Lord
Anderson, for his important contribution to improving the Bill
and the manner in which he has engaged with me and my officials.
I am glad that my words have at least gone some way to reassure
him sufficiently today.
I turn to Amendment 45B in the name of the noble Duke, the , and Amendment 45C
tabled by on storm overflows. The
Government’s new amendment in lieu will underpin the storm
overflows measures in the Bill by requiring water companies to
secure a progressive reduction—I will come to the definition of
that in a moment—in the adverse impacts of their storm overflows.
It will make our expectations unequivocal in law and enforceable
with the full suite of sanctions available under the Water
Industry Act 1991.
17:00:00
A number of noble Lords mentioned cost and the noble Baronesses,
Lady Hayman and Lady Jones, mentioned figures. The £600 billion
figure—I say at the outset that no one pretends it is a
scientific figure; a huge range has been described, from £150
billion to £600 billion, which is partly a reflection of the fact
that we do not know—is the cost not of dealing with the problem
in the manner we are describing and discussing in this House but
of eliminating all storm overflows. I do not think that is what
anyone is pushing for, as elimination of storm overflows would
also remove, for example, the use of sustainable drainage
systems, reed systems and the like. That figure is not made up.
It may be wrong—I will not pretend that we know for sure it is
right—but it is not a figure that has been plucked out of thin
air. It was set out by the Storm Overflows Taskforce in November.
As I said, I do not think anyone anticipates spending anything
like £600 billion to eliminate storm overflows. Our job will be
to eliminate the harm from storm overflows; that is the basis on
which we are continuing.
The noble Baroness, Lady Quin, mentioned the Thames tideway
project. The cost of that is around £5 billion. That is for one
river—albeit a big river—and £5 billion for one solution in one
area strikes me as a very large sum of money, so it is not
completely out of sync with the figures we have discussed in
relation to what the cost would be for the whole country.
I hope I will not ruin her credibility by saying so, but I count
the noble Baroness, Lady Jones of Moulsecoomb, as a friend and
someone who I think has instincts that are absolutely right. She
has been campaigning for many years on the environment in a very
effective and positive way, so I say this with genuine respect,
but I think she is wrong that we are heading backwards in any
respect at all. There is an argument—it is one she has made—that
the Bill does not go far enough, and we have discussed the issue
many times. If it becomes a law, the Bill in its current form
represents a big step forward. The protections we will have for
our waterways, rivers and ocean will be greater than at any point
in our history as a consequence of the Bill. Again, there can be
argument about whether the laws have been sufficiently
strengthened, but the idea that we are going backwards in any
sense is just not objectively true.
The noble Duke, the Duke of Wellington—and I extend my comments
to the noble Baroness, Lady Altmann—asked for acknowledgement by
me that this amendment is a reflection of and testament to
extraordinarily effective campaigning by both them and , who is sitting over there. I
really appreciate the pressure that they have applied because, as
they know, decisions are made by the whole of government and
pressure on one department enables that department to win
arguments with other departments. I sincerely acknowledge the
beneficial impact of the noble Duke’s very effective campaigning.
On the back of that clear success, I hope noble Lords will feel
able to support these amendments.
As your Lordships’ House will be aware, the Bill requires the
Government to prepare and publish a plan to reduce storm
overflows by September 2023. We have been clear that this
plan—not secondary legislation, as would be required by the
amendment tabled by the noble Lord, Lord Adonis—is the right
place to set out guiding principles to reduce harm from storm
overflows, including our level of ambition. The Bill requires us
to consult publicly on that plan, and I can announce to the House
that we will consult on the draft plan, including the level of
ambition over the lifetime of the plan, in spring next year. The
plan will help to inform and underpin the wider price review
process, including guidance from the Environment Agency, the
Water Industry National Environment Programme and the water
industry strategic environmental requirements.
The noble Lord, , and, I think, the noble
Baroness, Lady Hayman, and the noble Lord, , all talked about the
importance of enforcement. Our amendments will dock in with the
existing enforcement regime in the Water Industry Act, which
means that Ofwat can issue enforcement notices to direct specific
actions or, as I said earlier, fine companies up to 10% of their
annual turnover, which is a very significant deterrent. However,
I acknowledge the point, and I think that the Government across
the board would acknowledge that those tools needed to be more
effectively used. I do not think there is any argument there; we
need a much more muscular approach.
I think it was the noble Baroness, Lady Hayman, who asked about
the definition of a “progressive reduction”. We took that term
directly from the Lords amendment. “Progressive” means that water
companies must continue to take action even after the next price
review period and even after they have achieved a significant
reduction and tackled high-priority sites, as required in the
draft policy statement to the regulator, Ofwat.
In response to the noble and learned Baroness, Lady Butler-Sloss,
and my noble friend Lady Neville-Rolfe, I say that the new
monitoring requirements added to the Bill include near real-time
reporting and attach a new duty to the Environment Agency. The
need for very up-to-date and rapid reporting and monitoring is
embedded in the amendments we have put forward and, indeed,
across the Bill.
(Con)
I appreciate the new provisions for real-time monitoring, which
are obviously a move forward, but how do they get added together
to make sure that we are tackling the sewage issue? That is what
I was concerned about.
of Richmond Park (Con)
If the monitoring is done in the manner in which this legislation
requires, that data will become immediately available, but it is
for the regulators—indeed, the Government—to ensure that the data
is processed and understood and that it informs next steps. It is
hard to be more specific; that is the Government’s job and if the
Government fail in their duties there are a number of other
accountability mechanisms which we are introducing through the
Bill—not least the OEP—to ensure that the Government do their
job.
My noble friend Lady McIntosh asked about timelines. We have
committed to review Schedule 3; I have put that on the record in
the past, work has begun, and the review will report early next
year.
I hope that I have answered the questions that were put to me
today. I thank all those who have contributed to this debate and
to the hours of debate since the Bill was introduced. It has had
a challenging passage, but I have sincerely appreciated
contributions—or most of them—from across the House and in the
other place in support of the environment that we all
cherish.
I once again thank all noble Lords who have tabled amendments
throughout the passage. I also thank the stakeholders, who have
used their voices so effectively. I particularly thank my
counterparts on the opposition Benches—the noble Baronesses, Lady
Jones and Lady Hayman, and the noble Lord, , and the noble Baronesses, Lady
Parminter and Lady Bakewell, and the noble Lord, . I very much take the point
made by the noble Baroness, Lady Parminter, about the pong in the
ping-pong, but the work—
(LD)
It was the noble Baroness, Lady Hayman.
of Richmond Park
I am so sorry—I have just transferred that brilliant joke to
another party. It may have been a brilliant joke but there was
some truth in it—many a truth is told in jest, as someone said.
The noble Baroness, Lady Hayman, makes a very good point, but I
genuinely believe that the work of this House has removed much of
the pong, and the ping-pong has, as a result, improved the Bill
considerably. I genuinely thank her and others across the aisle
for the work that they put into this.
I equally thank my exceptional private office staff, who have
worked above and beyond the call of duty. This has been a very
long process; it is one of the biggest Bills we have had to deal
with. They have been working—in some cases—around the clock and I
am very grateful to them and of course to the Bill team, who have
been absolutely superb and extraordinarily patient, not just with
colleagues in this House but with Ministers. I really appreciate
their efforts and I look forward—as I know many in this House
do—to the Bill continuing the crucial work that we have already
begun to restore our appallingly depleted natural environment,
improve the quality of our air and water, and end the scourge of
plastic waste pollution. I commend this Motion to the House.
(CB)
My Lords, I thank all those who have taken part in this debate
and will reiterate something that was said at earlier stages of
the Bill. The amendments I have been involved in, and many of the
others, have been genuinely across all groups, and it has been a
particular pleasure for me to work not only with the noble
Baronesses, Lady Jones of Whitchurch and Lady Parminter, but with
colleagues on the Conservative Benches: the noble and learned
Lord, , the noble Lord,
and others. The
concerns we have expressed are not partisan: they are genuine
concerns about wanting to improve the Bill and protect the
environment for our grandchildren and generations to come.
I also thank the Minister. In his reply, he did indeed utter the
words I was hoping he would: namely, that the Government’s
intention is to protect the operational independence of the OEP.
I am very grateful to him for confirming that.
In concluding, I think that the noble Lord, , said it far more eloquently
and succinctly than I could. We have worked hard to try to
improve the Bill and we have made significant gains, but there
comes a point at which we say, “Enough is enough. We have done
the best we can. We have brought our experience and expertise to
bear on the Bill and we think we have got about as far as we can.
It may not be perfect, but it is better than it was when we
started.” On that basis, I beg leave to withdraw Motion A1.
Motion A1 (as an amendment to Motion A) withdrawn.
Motion A agreed.
Motion B
Moved by
of Richmond Park
That this House do not insist on its Amendment 33B to which the
Commons have disagreed, and do agree with the Commons in their
Amendments 33C and 33D in lieu.
33C: Clause 37, page 22, line 25, leave out from “if” to end of
line 28 and insert “Condition A or Condition B is met.
(8A) Condition A is that the court is satisfied that granting the
remedy would not—
(a) be likely to cause substantial hardship to, or substantially
prejudice the rights of, any person other than the authority,
or
(b) be detrimental to good administration.
(8B) Condition B is that Condition A is not met but the court is
satisfied that—
(a) granting the remedy is necessary in order to prevent or
mitigate serious damage to the natural environment or to human
health, and
(b) there is an exceptional public interest reason to grant
it.”
33D: Schedule 3, page 148, line 21, leave out from “if” to end of
line 26 and insert “Condition A or Condition B is met.
(5A) Condition A is that the court is satisfied that granting the
remedy would not—
(a) be likely to cause substantial hardship to, or substantially
prejudice the rights of, any person other than the authority,
or
(b) be detrimental to good administration.
(5B) Condition B is that Condition A is not met but the court is
satisfied that—
(a) granting the remedy is necessary in order to prevent or
mitigate serious damage to the natural environment or to human
health, and
(b) there is an exceptional public interest reason to grant
it.”
Motion B agreed.
Motion C
Moved by
of Richmond Park
That this House do not insist on its Amendment 45B to which the
Commons have disagreed, and do agree with the Commons in their
Amendments 45C and 45D in lieu.
45C: After Clause 78, page 73, line 29, insert the following new
Clause—
“Reduction of adverse impact of storm overflows
In Chapter 4 of Part 4 of the Water Industry Act 1991, after
section 141EB insert—
“141EC Reduction of adverse impact of storm overflows
(1) A sewerage undertaker whose area is wholly or mainly in
England must secure a progressive reduction in the adverse impact
of discharges from the undertaker’s storm overflows.
(2) The reference in subsection (1) to reducing adverse impacts
includes—
(a) reducing adverse impacts on the environment, and
(b) reducing adverse impacts on public health.
(3) The duty of a sewerage undertaker under this section is
enforceable under section 18 by—
(a) the Secretary of State, or
(b) the Authority with the consent of or in accordance with a
general authorisation given by the Secretary of State.””
45D: Clause 139, page 125, line 41, at end insert—
“( ) section (Reduction of adverse impacts of storm overflows)
(reduction of adverse impacts of storm overflows);”
Motion C1 (as an amendment to Motion C) not moved.
Motion C agreed.
Motion D
Moved by
of Richmond Park
That this House do not insist on its disagreement with the
Commons in their Amendments 75A and 75B on which the Commons have
insisted for their Reason 75D, and do not insist on its Amendment
75C in lieu to which the Commons have disagreed for the same
Reason.
75D: Because the Bill and Amendments 75A and 75B make appropriate
provision in relation to guidance and the independence of the
OEP.
Motion D agreed.
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