My Lords, I declare my environmental interests as in the register. However, today, I speak in my capacity as chair of the Delegated Powers Committee. I will speak to Amendments 148, 150, 160, 190, 191, 231, 243 and 250, which flow from the recommendations in our report on the delegated powers in the Bill. The changes that I am proposing are incredibly modest; the reason for that is that the Bill has satisfied my committee on the vast majority of delegated powers in it.
To set my proposed amendments in context, we said in our report that Defra’s delegated powers memorandum was “thorough and exceedingly helpful” and
“a model of its kind”.
This is a massive landmark Bill of 141 clauses, 20 schedules and eight different parts. It has 110 regulation-making powers but 44% of them are affirmative, which
must be a record. We recommend that only one of those powers be upgraded from negative to affirmative. It has 17 Henry VIII powers but 15 are affirmative. One of my amendments seeks not even to delete one of the Henry VIII powers but merely to limit it.
I contrast what Defra is doing with the delegated powers in this Bill with one from BEIS that we reported on last Friday: the Advanced Research and Invention Agency Bill. It has a mere 15 clauses and deals with a single issue yet, as we have seen many departments do ever since they learned this ploy from the European Union (Withdrawal) Act, BEIS has tacked on a completely unnecessary Henry VIII power to amend any Act of Parliament since 1066.
So the Environment Bill is very good in delegated powers terms but my amendments seek to make it an absolute exemplar across the whole of government. Let us take the easy ones, which I am sure my noble friend can assent to just like that. Amendments 148, 150, 195, 231, 243 and 250 simply ask him to adopt exactly the same procedure that is already in Clause 24(4), which is to lay the published guidance before Parliament. Where guidance is statutory and has to be followed, we in the Delegated Powers Committee say that it should be approved by Parliament, but guidance that is merely intended just to guide does not need parliamentary scrutiny. The Bill therefore has a provision in Clause 24 that the Secretary of State can issue guidance to the OEP while subsection (4) says that the guidance must be laid before Parliament and published.
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All that my amendments in this selection are doing is applying the same requirement to other guidance in the Bill, which is simply replicating what is already in Clause 24(4). We are not asking for it to be approved by negative or affirmative procedure, nor that it be debated or prayed against. All we seek is that it be laid, which means that it appears in our appendix to proceedings; Peers and MPs then know of its existence and can go and read about it if they wish. It is a courtesy to Parliament and, since my noble friend the Minister is a courteous man—as well as, if I may say so, an exceptionally knowledgeable environmental champion for all biodiversity in the UK—I am sure that he will be able to accept this group of amendments. That polishes off six of my nine amendments.
Amendment 160 suggests that the regulation permitting the recall of motor vehicles or parts of vehicles for environmental reasons should be upgraded from negative to affirmative. This power will be used against not individuals but manufacturers or distributers. It is the sort of power I wish we had had years ago so that we could take those millions of poisonous Volkswagens off the road. If this power is used, we are talking about thousands of vehicles and millions of pounds—possibly approaching billions if it were used in circumstances similar to those cheating diesel vehicles.
In those circumstances, I suggest that a negative procedure is just not good enough. Something this big and controversial needs the affirmative procedure. I can imagine MPs demanding debates and Urgent Questions on Statements, and the Government will be severely criticised if something of this magnitude is done with a negative procedure. Nor can it be argued
that the power has to be used urgently and therefore the negative is needed. If it was an urgent safety matter, the “made affirmative” procedure could be used. There is nothing to be lost here by my noble friend the Minister agreeing to this.
Finally, we come to dear old Henry VIII. In many Bills, we have been scathing about the abuse of Henry VIII powers. Of course, they are necessary in many Bills, but they should be tightly circumscribed and, ideally, sunsetted. My committee was content with every Henry VIII power in this Bill except for one. This relates to Clauses 88 and 90, on the valuation of land drainage.
Noble Lords will know that the whole of the law relating to valuations and land drainage is contained in the Land Drainage Act 1991—not the most exciting of reads. There is no other law remotely involved. The Bill makes amendments to the 1991 Act and understandably has powers to make regulations to make “incidental, supplementary, consequential” provisions et cetera. Indeed, the Defra delegated powers memorandum justifies this by saying that this is
“in case the application of the new calculation requires incidental or consequential provision to be made to the LDA 1991, or to repeal specific provisions of the LDA 1991 which are made redundant as a result of the regulations applying in relation to all IDBs.”
What completely mystified my committee was that we accept the need for powers to amend the 1991 Act—the only Act mentioned and in contention—but the drafters here have widened the Henry VIII power to include every other Act of Parliament. We think that that is quite unnecessary and it blots the copybook of what are otherwise acceptable Henry VII powers—and there are not many times we say that.
My noble friend, I am sure, will want to accept the tweak to the Henry VIII power and the other amendments, but all I am asking him to do tonight is to take these away and consider them. I accept that he may have to consult other departments on this, but I hope that he will be as successful there as he was in getting biodiversity net gain extended to national infrastructure projects. That was an incredible success of the Minister and Defra. Getting others to sign up to that was an incredible achievement; I am sure that he will manage the same with these amendments if he requires other departments’ approval.