1.The Environment Bill was brought from the House of Commons on 26 May 2021. It contains a legal framework for environmental governance, and specific measures on matters including waste, resource efficiency, air quality, water, nature and biodiversity.
2.The Bill contains 110 delegated powers, 48 of which (a comparatively large number) allow for the affirmative procedure. The Department for Environment, Food and Rural Affairs has furnished us with a thorough and exceedingly helpful Delegated Powers Memorandum (“the Memorandum”), a model of its kind.
3.In our Report on the Rivers Authorities and Land Drainage Bill,we expressed concern at provisions relating to internal drainage boards. We described them as an attempt, upon flimsy grounds, to set aside the procedures which Parliament has put in place to protect the interests of citizens who would be unfairly affected by legislation.
4.We welcome the fact that clauses 88 to 91 of the Environment Bill have recast those provisions in ways that address our concerns. The provisions in the earlier bill that disapplied the hybrid instrument procedure for regulations made under new sections 37(5ZA) and 41A of the Land Drainage Act 1991have been removed. A new requirement for consultation before any exercise of those powers has been added.
5.We welcome also the fact that Defra has made significant improvements to the explanation and justification given in the Memorandum to address shortcomings identified in our earlier Report - in particular, a failure fully to justify the breadth of the powers taken.
6.Although we draw attention to one aspect of the provision in clauses 88 and 90 of the Bill, this Bill and its Memorandum have benefited substantially from our scrutiny of the earlier Bill. We welcome the Government’s positive response to our earlier recommendations.
7.Several clauses in the Bill, including clauses 24, 56, 67, 99, 102 and 103 contain provisions for the issuance of guidance. In most cases, regard must be had to the guidance by various bodies (though not the guidance in clauses 102(7) and 103(8)). And in most cases the guidance is not subject to any parliamentary oversight (though clause 24(4) contains a welcome exception).
8.Guidance that is merely intended to guide does not require any parliamentary procedure. It does not even require legislation, given that Ministers have common-law powers to issue guidance. But we have often recommended that statutory guidance to which regard must be had (which in practice will be followed in the absence of cogent reasons), and which is designed to have a transformative effect on behaviour, should be subject to a parliamentary procedure. This is not to say that such guidance should be drafted like regulations contained in a statutory instrument. This would be inappropriate given the language, form and purpose of guidance compared to binding regulations.
9.To take an example, clause 67(3) contains a power for Ministers to issue guidance to litter authorities on the exercise of littering enforcement functions. Paragraph 262 of the Memorandum states that the purpose of the guidance is to “ensure” that the various littering authorities act consistently and proportionately. Despite this, the Government do not propose any parliamentary oversight because the guidance would contain lengthy details that do not require such oversight (Memorandum, para. 263).
10.Clause 24(4), a provision added at Commons Committee stage, states that any guidance that the Secretary of State issues to the new Office for Environment Protection (“the OEP”), to which the OEP must have regard, must be laid before Parliament and published. If applied to some of the other clauses on guidance, this would mark an improvement in the Bill’s scrutiny arrangements. We recommend that the parliamentary procedure in clause 24(4) be extended to other guidance provisions in the Bill, particularly clause 67 on littering enforcement.
11.Clause 73 contains wide-ranging powers for the Secretary of State by regulations to make provision relating to the recall of motor vehicles, certain engines and their components, if they fail to meet relevant environmental standards to be specified in the regulations. The powers on enforcement allow for the creation of an enforcement authority, specify no limit on the amount of financial penalties that can be levied and allow wide powers of entry, search and seizure.
12.The regulations are to be made under the negative procedure. We do not find the Government’s justifications (Memorandum, paragraph 327) to be convincing.
(a)Once the scheme has begun operating, changes may have to be made quickly in response to new environmental standards.
This is an argument for making the changes in regulations rather than in a new Bill. It is not an argument for the negative procedure because regulations can be made as expeditiously under the “made affirmative” procedure as they can under the negative procedure.
(b)The power is similar to the power to make regulations contained in section 54 of the Road Traffic Act 1988.
But the powers in section 54 do not concern recall and, in any event, the 1988 Act is perhaps a dated precedent.
(c)Regulations will not apply to individuals, only to manufacturers and distributors of relevant vehicles, engines or components.
If important subordinate legislation is otherwise deserving of the affirmative procedure, it should not be downgraded to the negative procedure merely because businesses (rather than individuals) are the particular Ministerial target.
13.We recommend that the affirmative procedure should apply to regulations made under clause 73.
14.Clause 88 inserts a new section 37(5ZA) to (5ZH) into the Land Drainage Act 1991 (“the 1991 Act”), allowing the Secretary of State by regulations to make provision for the value of non-agricultural land in an English internal drainage district to be determined in accordance with the regulations. New section 37(5ZE) allows the regulations to make incidental, supplementary, consequential etc. provision. As part of this, new section 37(5ZF) contains a Henry VIII power to amend any Act of Parliament including the 1991 Act itself.
15.The Government’s justification for the power (Memorandum, paragraphs. 404 and 414) is:
“… in case the application of the new calculation requires incidental or consequential provision to be made to the Land Drainage Act 1991, or to repeal specific provisions of the LDA 1991 which are to be made redundant as a result of the regulations applying in relation to all internal drainage boards.”
16.The power in new section 37(5ZF) of the 1991 Act is arguably wider than is necessary to achieve its stated purpose. In the absence of a clear justification why new section 37(5ZF) of the 1991 Act should be able to amend any Act of Parliament, its scope should be confined to amending the 1991 Act only. This is, after all, the only Act that the Government say might require consequential etc. amendment.
17.A similar point applies in relation to clause 90. Clause 90(3) inserts a new section 41A in the 1991 Act, and new section 41A(11) allows regulations to make incidental, supplementary, consequential etc. provision allowing the amendment or repeal of any provision of any Act of Parliament. However, the Memorandum (paragraph 431) makes clear that the powers may be needed to amend only the 1991 Act:
“the powers enable incidental, supplementary, consequential, transitional, transitory or saving provisions to be made to the LDA 1991 under new section 41A(11), such that in the future, the alternative calculation may, if necessary, replace the existing calculation provided for in the LDA 1991 in full.”
18.The power in new section 41A(11) of the 1991 Act is arguably wider than is necessary to achieve its stated purpose. In the absence of a clear justification why new section 41A(11) of the 1991 Act should be able to amend any Act of Parliament, its scope should be confined to amending the 1991 Act only. Once again, this is the only Act that the Government say might require consequential etc. amendment.
19.Paragraph 2 of Schedule 14 inserts a new Schedule 7A to the Town and Country Planning Act 1990, imposing a requirement for a biodiversity gain to be required as a condition of all planning permissions granted in England.
20.Central to the calculation of biodiversity value is a biodiversity metric to be produced and published by the Secretary of State. The metric will set out a methodology for calculating biodiversity value of habitat, taking account of a large number of variables.
“Many of these variables will require the application of expert judgment on the part of an ecologist” (Memorandum, paragraph 448).
21.But where expertise may have a profound effect on the results of planning applications, there is a role for Parliamentary scrutiny of this expertise. One might have expected that the power to make such an important metric would be exercised by regulations subject to the negative procedure or by the procedure in clause 24(4). In fact, the Department will publish the metric but subject to no parliamentary procedure at all: paragraph 4(2) of the new Schedule 7A to the Town and Country Planning Act 1990.
22.We find the Government’s reasons (Memorandum, paragraphs 449–450) to be unconvincing.
(a)“The format of the metric means it is unsuitable for putting in legislation. The Department recognizes the need to formalize the status of the metric but considers this is best done by publishing as a document.”
But if the metric can be reduced to documentary form, it can be laid before Parliament for scrutiny.
(b)“Prior to publication or republication the metric is to be subject to a consultation requirement, which the Department considers the best way to ensure that stakeholders have an opportunity to express a view on it.”
Pre-making consultation of those likely to be affected is best practice. But it is no substitute for parliamentary scrutiny, whether pre-making or post-making.
(c)“The metric is likely to be subject to incremental revision from time to time as it is used in practice and as it is refined”.
This is not an argument for denying a role for parliamentary scrutiny, quite the reverse. Legislation is always subject to revision, and much of the work of Parliament involves the scrutiny of amendments to legislation.
(d)The metric “will be highly technical and not easily subject to Parliamentary consideration” and will have been consulted on.
But the work of no expert, ecological or otherwise, should be above the scrutiny of Parliament. Experts are fallible. There should be nothing in a biodiversity metric that should defeat reasonable attempts to scrutinise it.
23.Furthermore, it is odd that Parliament will be given the opportunity to consider the transitional provisions relating to any revision and republication of the metric (Memorandum, paragraph 450) but will be denied any scrutiny role when the metric is first published.
24.We recommend that the power to publish the biodiversity metric (in paragraph 4(2) of the new Schedule 7A to the Town and Country Planning Act 1990) should be subject to a parliamentary procedure. The negative procedure, or the procedure in clause 24(4), would suffice.
1 , Session 2017–19 (HL Paper 370).
2 Those new sections are inserted by clauses 88(3) and 90(3) of the Bill.
3 See new clauses 37(5ZG) and 41A(12) of the Land Drainage Act 1991, inserted by clauses 88(3) and 90(3) of the Bill.
4 See paras 47 and 70 of that Report.
5 For example, the Committee’s , Session 2015-16, para 13; , Session 2015-16, paras 10-11; , Session 2015-16, para 27; , Session 2015-16, para 19; , Session 2016-17, para 38.