Environmental Audit Committee
Oral evidence: Draft Environment (Principles and Governance) Bill, HC 1951
Wednesday 20 March 2019
Ordered by the House of Commons to be published on 20 March 2019.
Members present: Mary Creagh (Chair); Alex Cunningham; Geraint Davies; Mr Philip Dunne; Zac Goldsmith; Caroline Lucas; Kerry McCarthy; Anna McMorrin; John McNally; Alex Sobel.
Questions 150 - 244
Witnesses
I: Michael Gove MP, Secretary of State for Environment, Food and Rural Affairs, and Dr Thérèse Coffey MP, Parliamentary Under-Secretary of State, Department for Environment, Food and Rural Affairs.
Examination of witnesses
I: Michael Gove MP, Secretary of State for Environment, Food and Rural Affairs, and Dr Thérèse Coffey MP, Parliamentary Under-Secretary of State, Department for Environment, Food and Rural Affairs.
Q150 Chair: I am very acutely aware of the time pressures that are on the witnesses today—our ministerial colleagues—so thank you both very much indeed for coming. We will obviously have to stick to time because you have a Westminster Hall debate, for which you cannot be late. Secretary of State, we understand you need to leave at 2.30 pm, is that correct?
Michael Gove: That is correct, yes. Thank you.
Chair: We will do our best to give you a fair wind on that, but I appeal for short answers.
This is our final session on the environmental protection Bill, and I would like to kick off. Secretary of State, you told EFRA that you wanted the maximum possible independence for the OEP. Why have you ignored this Committee’s recommendation that it should be accountable to Parliament in the same way that the National Audit Office is?
Michael Gove: The advice that we have received is that this body can exercise full independence as a non-departmental public body. There are a number of departmental public bodies, for example, like the Information Commissioner, whose independence nobody doubts and who are funded appropriately and operated arm’s length from Government to provide the assurance that the public need.
Q151 Chair: That is advice from perhaps your civil servants, but the advice from this group of parliamentarians was that given that your Department has more experience shutting down environmental watchdogs—the Royal Commission on Environmental Pollution and the Sustainable Development Commission were both got rid of by ministerial fiat in the Public Bodies Bill in 2010—we wanted this office not to be looking to you for its funding but to Parliament for its funding. Do you not see it as a weakness in its construction?
Michael Gove: It is an arguable case. I think there are strong reasons and strong precedents why it should be a non-departmental public body. I think that this is one of those bodies which, once established, it would impossible to terminate in the way that you refer to, but of course there is a very legitimate and respectable argument about other means of providing that independence.
Q152 Chair: How would it be impossible to terminate? The Royal Commission on Environmental Pollution and the Sustainable Development Commission were both statutory bodies. You pass another statute, you get rid of them.
Michael Gove: It is a political judgment and I respect the fact there could be legitimate views on either side.
Chair: Yes, it is not impossible to get rid of them, is it?
Michael Gove: I think that it would be—
Dr Coffey: It would require a new law.
Michael Gove: Yes, that is the first thing, but I am using it as a term of art, because I believe that it would be politically impossible and legislatively I think there would be insuperable obstacles to face before doing so.
Q153 Chair: I thought that the Royal Commission on Environmental Pollution, which had endured from the 1970s, would never be abolished, but extraordinary things happened.
Michael Gove: Indeed.
Chair: It went through on the previous coalition Government’s watch, did it not?
Michael Gove: That is correct.
Q154 Chair: Will you allow the OEP to have more autonomy in preparing its own budget estimate and are you considering multiannual budgets for it, as the Environment Agency has recommended?
Michael Gove: It is certainly the case that we wanted to make sure that it is properly and adequately funded, and it is the case that the OEP will have a responsibility to state whether or not it is receiving the funding necessary. But part of the process of prelegislative scrutiny is assessing how we can provide the maximum level of guarantee, both that it has the money that it needs and also that its budget is secure for the length of time that it is required. Of course you will appreciate that with non-departmental public bodies we do not have to, but we have to take into account precedent, but I absolutely recognise the honest intent behind the suggestion.
Q155 Chair: How much are you thinking as an indicative budget?
Michael Gove: In millions? I think as much as the chair and the board considers to be appropriate. The key thing with the body is that it need not have an extensive staff. If you look, for example, at the Parliamentary Commissioner for New Zealand, it can be a very effective body without necessarily having the size of staff that an organisation like Natural England or the Environment Agency has to have. The most important thing is that the chair and the board feel that they have all the resources required in order to provide advice and scrutiny, in order to measure progress against targets and also in order to initiate, if necessary, the taking up of complaints and judicial action against the Government or any other agency that is found to be in breach of its legal obligations.
Q156 Chair: This body is being set up to fill the Commission-shaped hole that, as you say, we need to fill if we leave the EU. How many people does DG Environment employ in Brussels, do you know?
Michael Gove: I think it is in the 200s.
Q157 Chair: Would you see a similar number of people for this body?
Michael Gove: I would think we would need anything between 60 and 120 people.
Q158 Zac Goldsmith: You said you want to put the 25-year plan on a statutory footing in the second half of the Bill. Can you explain how that is going to happen?
Michael Gove: Yes. I think it is important that the 25 Year Environment Plan is placed on a statutory footing. The original conception for the 25-year plan came from the Natural Capital Committee. I think we all recognise that, if the various obligations placed on Government within it were placed on a statutory footing, Government would be held to account for its performance against not just the metrics within it, but the broader obligations we have.
Q159 Zac Goldsmith: Obviously it is not just a DEFRA issue, although it is under your control. What mechanisms are available, or will you introduce to compel other Departments to play their role to contribute to meeting those targets?
Michael Gove: If the Environment Bill passes as we envisage, then it will be the case that there will be a statement of environmental principles, which will govern all Government policy. All Government policy has to be judged against that statement of principles and if any Government Department or any Government agency is in breach of those principles and existing statute, then the OEP would have a role in ensuring that arm of Government was brought to book.
Q160 Zac Goldsmith: Would there be a specific role, a special role, for DEFRA in those circumstances or would it be entirely down to the OEP?
Michael Gove: It would be principally down to the OEP. DEFRA plays a role, as does BEIS, in reminding other Government Departments of their environmental responsibilities, but in the same way as when any Government policy is being put into place, there has to be consideration, for example, of the equality and human rights impacts of any new policy. Government Departments would have to have regard to the statement of environmental principles that band Government policy.
Q161 Zac Goldsmith: Can you explain why there are no other Departments currently represented on the implementation of the 25-year plan’s progress?
Michael Gove: Other Government Departments are represented in discrete ETE Committees that look at aspects. For example, when it comes to biodiversity net gain, which is a very important principle, then we have worked with BEIS, MHCLG and—most prominently and importantly—HMT on that. When it comes to thinking about marine protected areas, for example, or wildlife crime, we work with the Foreign Office, DFID and HMT and others. But again, I am very open to making sure that Whitehall structures are as effective as possible in making sure that people understand their environmental responsibilities.
Dr Coffey: Clean growth as well.
Michael Gove: Exactly.
Dr Coffey: So we cover different aspects. It is where these topics really work to get the implementation rather than having a huge board where people do not necessarily feel connected into that.
Q162 Zac Goldsmith: Do you not think there should be some representation on the board directly from other Departments? Before you answer that, who creates the board? Who has decided who sits on the OEP?
Michael Gove: We do, at DEFRA. Of course if we believe that there are, for example, particular areas of work that require the support of other Government Departments, then whether it is an inter-ministerial group or a task and finish group, we can set them up. Thérèse’s point is a powerful one, which is that you can sometimes have, in my experience in Government, Committees that are set up where they are less action-focused and more discussive. I have nothing against—in fact, I am all in favour of—Ministers and officials talking as fully together about how they achieve particular goals, but it is often the case that you get progress when you have, whoever is chairing it, an action-focused group.
Again, without wanting to be too specific, members of the Committee will know from, for example, the work that was done in preparation for the Illegal Wildlife Trade Conference that bringing together groups of Ministers who have a clear focus on achieving certain goals can mean that while we do not achieve everything, we can make some progress.
Q163 Chair: One of the criticisms around your draft indicator framework came from the Natural Capital Committee, who said there were serious errors in your approach and in the indicators being proposed and insufficient emphasis on natural capital. What is your response to that?
Michael Gove: Since then, I have talked to Professor Dieter Helm on a couple of occasions, but precisely that, because he has been one of the most influential on our thinking over the course of the last year and a half. We are reflecting on exactly how we can make sure that we have metrics that properly take account of the importance of natural capital.
Q164 Chair: The NAO has said the same, you have not done enough to engage with other parts of Government on these indicators and accountability.
Michael Gove: To be fair, in the first instance, I think the UK is world-leading in its adoption of natural capital as a principle that should guide action. I have to pay appropriate tribute to Caroline Spelman and Richard Benyon for their work at DEFRA in this field. There is much more that we can do. I was talking with Professor Helm and others just this morning about how we can do better in this area.
Q165 Chair: You have seen the suggestions that this Committee made about the targets and indicators?
Michael Gove: I have seen some of those, yes.
Chair: They are all in our previous report, which I am sure you have been keeping by your bedside for those late nights when we need help getting to sleep. John.
Q166 John McNally: My question is around collaboration with devolved legislatures. Could I ask you, first of all, how will the backstop affect the role of the Office for Environmental Protection in Northern Ireland?
Michael Gove: Again, we have talked to all the devolved Administrations. We meet monthly. Obviously without an Executive in place in Northern Ireland, we rely on the work of the brilliant team of officials in DAERE. They have requested, subject to obviously any Executive ratifying that, that there be a schedule to the Bill so that the OEP provisions can operate in Northern Ireland. In Scotland, Roseanna Cunningham has a very helpful consultation out at the moment—and Lesley Griffiths ditto just this week—on how we can make sure that we work together.
Our view would be that the provisions in the protocol, the backstop, relate to there being a body or bodies within the United Kingdom that are responsible for making sure that the Government lives up to the broad principle of non-regression and also keeps the environmental principles to which we have subscribed while we are in the European Union at the heart of decision-making.
Q167 John McNally: My second question then is I did read the reply back from the Northern Ireland Office, but what consideration have you given to the practicalities of how the Office for Environmental Protection will need to be set up? They asked that question in the reply, for example, board representation, the financing and particularly the location.
Michael Gove: I am open-minded. First, we touched on financing earlier. I think that the chair and the board should be in the driving seat when it comes to saying what the level of resources that we need are. We have talked about indicative budgets. When it comes to location, again that is an open question. My own preference is that it should be located outside London. Indeed, when I met with Fergus Ewing recently, I said that if it was felt that there was a body that could cover the whole United Kingdom—of course Scotland could have its own body, should it wish to—then I would be very open to it being located in Scotland and I suggested Aberdeen, not least because the JNCC have a base there.
Q168 John McNally: That is further north than I anticipated, I have to say.
Michael Gove: Falkirk is a very attractive location.
Q169 John McNally: Falkirk would be an absolutely splendid place, some great landmarks there.
I want to move on. How do you intend to tackle the cross-border sites and the transboundary issues in particular between Northern Ireland and Ireland, given that there is a natural flow of waters between them in the environmental situation? We know that there are going to be a lot of people moving back and forward. There is going to be probably a lot of disparate waste fluid, mixed effluents going back and forward as well. How do you plan to tackle these kinds of issues?
Michael Gove: I will hand over to Minister Coffey, who has particular expertise in this area.
Dr Coffey: There is already extensive collaboration between the Northern Ireland Administration and the Republic of Ireland Government on those specific cross-boundary issues. I think it is Carlingford Lough and Lough Foyle where there are already management groups across the border that work together in that element. I know that there are issues about the movement of waste, but I believe that there is good co-operation that already exists. I think if you go to the Good Friday Agreement, while that is a key part of the element, it is about the collaboration and co-operation. It does not require necessarily that things be the same on how outcomes are achieved and what directives are set. I think there is a good record already and we are already seeing improvements in Northern Ireland, for example, an increase on recycling. It is now the second-highest of the four nations in that regard and I think they will continue to learn and collaborate with each other.
Q170 John McNally: My last question is moving on to Wales, because Wales are already setting a blinding trail for all of us to follow in many aspects. The Welsh Minister suggested that there is scope for the Bill to cover international legal obligations. Are you considering adding this to the scope of the Bill?
Dr Coffey: We are already signatories and full members of the international obligations that are there, of which also the EU may be a member. I think there are a handful that are not directly relevant to us, whether the EU has decided to join certain things that affect other countries of the EU more, but all the major international obligations, we are already signatories and therefore subject to obligations.
Q171 Chair: At a previous session, you told us, Minister Coffey, that the Scottish and Welsh Governments had no interest in being included in the UK Government’s proposals. Has that situation changed?
Dr Coffey: I have only just seen the proposals that came out from Wales. My understanding and discussions have been that they already had certain different commission bodies in there and they felt that was sufficient and that Scotland were pursuing another approach. What has happened, with the Withdrawal Agreement in place, if signed, it would require a body similar to the OEP in the other nations. Having just read the consultation—I have not had a discussion personally with Lesley in the last 48 hours—then there may be other opportunities for collaboration, but up until recently, my impression has been that they were happy to use their own processes in order to achieve that oversight.
Q172 Chair: Going back to the Secretary of State’s suggestion that if we had a UK-wide body it could be located in Scotland, would that not create issues for the bringing of cases, because it would be taken under Scottish law?
Michael Gove: No, I think wherever it was based in the United Kingdom they could always instruct lawyers in the appropriate courts of whichever jurisdiction it was felt it was necessary to bring action.
Q173 Chair: Presumably we want this body to have a reasonably low carbon footprint, so connectivity would be part of the decision around where it is located?
Michael Gove: Ideally it would have as low a carbon footprint as possible, yes.
Q174 Caroline Lucas: Secretary of State, I am hoping that your enthusiasm for putting the OEP in Scotland means that you will also be following the Scottish Government in terms of putting the principles on a statutory rather than a policy footing.
Michael Gove: It is the case that the principles should be on a statutory footing, yes, and then there will be a statement in Parliament by Government on how they will align policy with those principles.
Q175 Caroline Lucas: But that is not how the Bill is written at the moment. There is real concern that the principles will not be on a statutory basis, so are you changing that?
Michael Gove: It will be the case that we will have to act in accordance with the precautionary principle, the rectification at source principle, and the other principles that have developed during our time in EU.
Q176 Caroline Lucas: Just to be really clear, in Section 4.1, where at the moment it says, “A Minister of the Crown must have regard to the policy statement on environmental principles” are you saying that that will change to, “A Minister of the Crown will act in accordance with the environmental principles”?
Michael Gove: Will act in accordance with the policy statement and the policy statement will lay out what the principles are.
Q177 Caroline Lucas: There is a concern that that policy statement changes the status of the principles. The advice that we have certainly had from a number of environmental NGOs and academics would be to make sure that it is much clearer that those principles are on statutory basis on the face of the Bill.
Michael Gove: On the face of the Bill. No, I understand. Part of the process of prelegislative scrutiny is to balance competing goods, so we will reflect precisely on that point.
Q178 Caroline Lucas: Because it is interesting that Scotland is doing that, so it does not look as if there is a barrier to doing that.
Dr Coffey: We made the point to the other Committee that is also doing scrutiny that our lawyers have indicated very clearly how the approach is set out in the Article in the Treaty is in line, “have regard to”. I recognise that the legal wording may not always flow with what may be written in policy papers, but in terms of legal terms, that has been the assertion made so far. I recognise again, as the Secretary of State said, other people believe it should have stronger wording, but we believe the legal effect is there, but we are open to consideration.
Q179 Caroline Lucas: Hopefully, if the legal effect is not any different, then maybe you can humour those of us who would like to see the stronger wording, if it does not affect the outcome. But on the issue of the—
Dr Coffey: As long as it has legal application.
Q180 Caroline Lucas: Indeed. The number of exclusions to the application of the principles it has been put to us could perversely increase the amount of litigation associated with them. We are wondering if you might be in the mood to reconsider those exclusions.
Michael Gove: We will look at it on a case by case basis. If cases are put to us as to why the exclusion of certain policy areas creates particular problems, then we will certainly do so. One of the things I would say is that obviously all of us would prefer that everyone acted in such a way as not to give rise to litigation, but we do need to make sure that people do have, more broadly, the right to petition the OEP to take action or themselves to take action in the courts if they believe that someone is in breach of environmental law.
Q181 Caroline Lucas: On the assumption of taking them on a case by case basis, if I can take you to clause 1, Section 5, I think there is a real concern there that it gives an almost limitless carte blanche for the Secretary of State to decide something is not relevant or that it does not have significant environmental benefit. Those terms are incredibly subjective, so would you, for example, be looking at some of the legal concerns that have arisen around that wording?
Michael Gove: Yes, we have been reflecting on some of the points that have been by lawyers. There are other areas, where people say, for example, “Why should taxation or the allocation of public resource be exempt?” There are precedents about how resources are allocated within Government that it would be, we have been advised, unwise to overturn. But it is certainly the case that we expect that the environmental principles and the policy statement should govern the conduct of Ministers in all those areas where there are not specific exemptions.
Q182 Caroline Lucas: Just to be really clear, you will look again at the breadth of the exclusions that are currently there?
Michael Gove: We are considering the points that have been made by a number of environmental lawyers and others, yes. Again, we would be grateful for your recommendations about where you think the strongest arguments have been made.
Q183 Caroline Lucas: Certainly speaking for myself, those blanket exceptions around relevance and environmental benefit feel to me as if they would be an absolute field day for lawyers to be deciding exactly what that means.
Michael Gove: Yes.
Q184 Caroline Lucas: For example, originally when I read it, it did not jump out at me as being particularly problematic, having the exemption on Ministry of Defence issues, but then it has been pointed out to me—a very good point—that the Ministry of Defence has a huge amount of land and what they do there can potentially have quite serious environmental impacts. Indeed, the Environment Agency was one of the first to say that they were concerned about the exemption there.
Michael Gove: I think it is the case that the Ministry of Defence, like any landowner, would be subject to the full weight of environmental law, but there are certain areas of national security and defence where it would be, we would argue, unnecessary for the OEP to have a role.
Also, when it comes to Government decision-making, there will be some decisions that will be made by Government Departments. For example, if the Department for Education were to decide that it was going to change the specification, in consultation with Ofqual, for pass marks in the mathematics GCSE, the policy decision behind that would not have an environmental impact. Therefore it would be the case that the Secretary of State for Education should not necessarily have to, when he is making a policy decision like that, be thinking about the polluter pays or the rectification at source principle.
But of course when the Secretary of State for Education was thinking about capital funding for new schools, he or she absolutely should, so there are practical distinctions. That is what the wording of the Bill is designed to address, but of course what we want to do is try to remove any ambiguity as much as possible.
Q185 Caroline Lucas: I think the likelihood of a case being brought because the Secretary of State did not consider the environmental impacts of a maths GCSE are fairly remote, so it seems to me to turn it around and to make sure that there is more a presumption in favour of something being captured by this.
Michael Gove: No, I absolutely understand. I am not—what is the word—saying that I think that you are necessarily wrong. The point that I would make is that from my experience in Government, it is sometimes the case that if you create a responsibility or a duty to have regard to a policy statement, sometimes zealous and effective officials feel that that has to cover every area and we end up creating reams of unnecessary paperwork in areas that are not important environmentally. That takes time and attention away from those issues that are very important environmentally, but I do take on board your point.
Q186 Caroline Lucas: Could you say something about the exemption on taxation in particular? What was the thinking behind that one?
Michael Gove: The thinking about that is it has always been the case that decisions that have been taken by the Treasury and by finance ministries about taxation and the allocation of resource are not bound by the sorts of restrictions that are here. Again, a case can be made that we have seen the Treasury, even without the restraint imposed or envisaged by some, move in a way that is designed to ensure that the tax system can produce environmental goals and benefits. But ultimately it is the case that almost every Finance Minister across the world would think that in its allocation of resources, particularly in extremis, it has to have the freedom to be able to allocate resources as the Finance Minister sees fit.
Q187 Caroline Lucas: Although, as you will know, there are so many environmental measures that do depend on changes to the tax system, whether it is carbon taxes themselves or whether it is more beneficial rates for more environmentally-friendly processes.
Michael Gove: Yes.
Caroline Lucas: It seems perverse to take that out completely.
Dr Coffey: Successive Governments have tackled things with taxes where they believe that is an effective way to get an outcome. The landfill tax was probably one of the most significant changes to improving recycling. I know Mary said the other day you think the 30% recycling tax could be a real game-changer. There are plenty of good examples of where taxation is used in a positive way to make environmental improvements, but by convention and by effect, trying to again cross-bench all sorts of different policies against fiscal measures I think would be unprecedented.
Chair: We are going to leave that and move on, I am afraid. Geraint.
Q188 Geraint Davies: Secretary of State, the Bill limits enforcement to administrative compliance. Do you agree that it would be better for enforcement to focus on achieving environmental standards, like air quality standards, and indeed to ensure compliance with our promises on non-regression, which are based on standards rather than administrative compliance?
Michael Gove: If something is in statute and if something is in a policy statement that Ministers have to have regard to, then the effect of that is to ensure that the ambitions that we set as a Government and the laws that bind Government have to be complied with. Many of those laws and many of those ambitions do require us to comply with things like, for example, the CCC’s carbon budget, which are ways of ensuring not just compliance with bare obligations, but a greater level of ambition than had hitherto been exercised.
Q189 Geraint Davies: But isn’t it the requirement should be hitting environmental standards and being accountable for those rather than administrative compliance, sort of making out we have some mechanism to do something and failing to do it?
Michael Gove: No, I think if we fail, then it is clearly the case that we can be challenged by the OEP and, if necessary, taken to court.
Q190 Geraint Davies: Tell me, why does the Bill not make the whole of the Government accountable rather than individual public bodies, as you have in the European Commission? Again, in the case of clean air—you might answer, incidentally, why there is only outdoor air and not indoor air—you probably know the responsibility for that is with Public Health England, the HSE, BEIS, Housing and Communities and local government, so it is sort of everywhere. Wouldn’t it be more sensible to have the whole Government accountable for environmental outcomes, both in outdoor air and indeed in indoor air?
Dr Coffey: From a European Union perspective, the member state is the body that is challenged.
Geraint Davies: Exactly.
Dr Coffey: It is the UK Government, but in effect it is the Department that is responsible for that that will respond to and in fact lead on any infraction proceedings. That is even the case, for example, with the Welsh Government and the situation of the plant there. While it was the UK Government that had to answer to that and work with it, we have the same situation say with marine protected areas. Where there is a particular challenge about the Scottish Government not designating certain areas, we have to respond, but in effect what happens is the Welsh Government, the Scottish Government or indeed the relevant Department will respond to that on behalf of Government.
Q191 Geraint Davies: But will there be whole Government accountability is the question, rather than sort of DEFRA doing its best when we cannot control the levers of the standards that we are supposed to be complying with?
Dr Coffey: We have cross-governmental responsibility, so that already exists, but there is an element, for example, the ClientEarth legal cases, which have been successful. They did not cite any others, they just cited our Department, because we are the body of Government that is responsible for air quality standards. The intention is that the OEP has the possibility to go further and hold all public bodies accountable, but they do not have to. There could be an element of their choice.
Q192 Geraint Davies: On air quality, would you accept that there is a case the Environment Bill should include indoor air quality? Obviously it is part of our environment and harming people’s health.
Dr Coffey: I think that is a different issue—
Geraint Davies: It is, yes.
Dr Coffey: —about what gets assessed in that way. If you consider the amount of extensive monitoring that has to happen in every road situation and other ways of measuring particulate matter, I would be interested in your views on how you would think your house was going to be monitored and who was responsible for the air quality specifically in your house.
Q193 Geraint Davies: Yes, obviously there are ways of monitoring and testing people’s houses, but—
Dr Coffey: Should the Government be responsible for your house inside, the air quality?
Q194 Geraint Davies: I do not know. Basically the idea is that the Government should be responsible for protecting people. In my house, if I am being poisoned by all sorts of chemicals that the Government is allowing to be sold and promoted, then clearly we should be monitoring the public—
Dr Coffey: If you choose not to have ventilation in your house, if you choose to burn a candle, if you choose to use whatever sort of equipment to wash your bathroom and then choose not to open windows, is Government accountable for that? I think there are risks, Geraint, in what you are suggesting.
Q195 Geraint Davies: The answer is Government is accountable for indoor air quality, but DEFRA is not. The question is given Government is and there should be a whole Government approach, should indoor air quality also be in the Environment Bill, given the Government is accountable? It is not a question of whether it should be, it is. It is just other people, whether it is HSE, whether it is Public Health England or BEIS, have different levels of accountability.
Dr Coffey: I have just tried to suggest to you, Geraint, that I do not believe that there are legal targets for individual people’s homes and what the air quality measure should be.
Michael Gove: I think the Minister is absolutely right. To take a hypothetical case, let’s imagine, for the sake of argument, that Public Health England were responsible—or the HSE is probably a better body—for licensing certain products that would have an effect on indoor air quality. A new product comes on the market of whatever kind and the HSE or whoever it was says, “No problems, absolutely fine”. If that product were to have a clearly and obviously deleterious impact on air quality, then it is theoretically the case the OEP or others could say, “The HSE is in breach of its principles under environmental law, because this product” for whatever reason, “breaches the environmental principles in which we believe”.
One can see that set of circumstances, but I think the Minister’s point is absolutely right, there are Government agencies that have a responsibility for helping to keep us safe. If they are derelict in their duty then they can be held to account, but there is a limit to which Government should interfere in the private decisions of private individuals about what happens in their own homes.
Q196 Geraint Davies: My basic question was about having this whole Government approach accountable for a more holistic view of the environment rather than chopping up it into bits, but anyway.
Dr Coffey: I thought I had tried to answer that.
Michael Gove: No, I think it is the case that were any Government agency not to be operating—or for that matter, any branch of local government not to be—then the OEP could intervene.
Q197 Geraint Davies: Finally, binding notices could be avoided by giving the first tier tribunal an expanded role that is able to issue remedies. Have you considered this approach?
Michael Gove: Yes, I have. The case has been made by very eminent figures, like Professor Richard Macrory, that we should expand access to justice through the creation of a first tier tribunal that will cover environmental matters, much in the same way as we have tribunals covering immigration and asylum and employment law and other areas.
Dr Coffey: The Commission doesn’t serve binding notices, by the way, so you should be aware of that.
Q198 Chair: It does issue judgments and it can issue fines against whole of Government.
Dr Coffey: No, the European Commission cannot.
Q199 Chair: The ECJ. You are trying to replicate a system of enforcement, aren’t you, so the OEP is—
Dr Coffey: Yes, but they are separate.
Q200 Chair: I understand there is policy and then there are courts, but what we are talking about is having a first tier tribunal.
Michael Gove: Essentially a first tier tribunal, it is genuinely arguable whether that is a more effective means of providing justice. There are good arguments either way, but it is also the case that were a branch of Government to be in breach of its legal obligations and were we to ignore what the OEP said, much as it would be possible theoretically to ignore an infraction notice, then just as the European Commission can take a member state to court through the ECJ, so it can be the case that the OEP could take an arm of Government to court through our own domestic courts.
Q201 Chair: Or the whole of Government itself. I think Professor Macrory’s criticism is that we do not want to wait for seven years to have a remedy.
Michael Gove: Indeed.
Dr Coffey: Quite. One of the advantages of the OEP is there will not be that length of time, so I would anticipate this could be much more of an agile situation to where we are today.
Chair: His criticism is the current proposals lack imagination on enforcement, so he is quite strong on that. We are going to move on. Alex, thank you.
Q202 Alex Sobel: While I am sitting here, I am also reading the exchange from the Prime Minister and the Commission about the possibility of an extension. It is becoming more and more likely that we will leave on 29 March, next Friday, without a deal. Clearly we will leave ECJ jurisdiction and we will have no OEP. What arrangements are in place for what is potentially a long period if we leave next Friday and between then and the establishment of the OEP?
Michael Gove: Without getting into speculation about when we might leave, I absolutely recognise that it is possible that at some point we could leave without a deal. It would be the case that we would have an interim body that would be responsible for making sure that when the OEP was fully legislated and set up that we could take action against anyone who, during that period, might have in any way been in breach of the body of law, which thanks to the EU Withdrawal Bill, we will carry forward into UK legislation after we leave, come what may.
Dr Coffey: The Interim Secretariat is ready to go from 30 March.
Q203 Alex Sobel: So you will have retrospective powers and you will have an interim body. Will you be prepared to come to this Committee if, on 29 March, we leave to answer questions about how that interim body will operate?
Michael Gove: Yes. I suspect if we leave without a deal on 29 March, I might be busy on the 30th and the 31st in other ways.
Alex Sobel: That is a weekend, so—
Michael Gove: But then certainly very early in April.
Q204 Alex Sobel: How will you ensure there is scrutiny of that interim arrangement during this governance gap? How will we be involved in this?
Michael Gove: We would lay out exactly what we were doing at that point. Of course there will be a number of things if we left without a deal that DEFRA and other Government Departments would want to do to mitigate any of the risks and also to make sure that the new flexibility that we will have is being exercised in a responsible way. But of course we would come back to this Committee or I would be answerable on the Floor of the House of Commons as well to let you know how it is operating.
The other thing that I would say is, as we have said to DEFRA—and I think we have said before to this Committee—should it be the case that you believe that it would be helpful to come into the Department and to be briefed by officials about any particular aspect of the operation either of the shadow body or anything else, then there is a standing invitation to members of this Committee to come in.
Q205 Alex Sobel: When do you think the OEP will be established? Because we need to have a timeframe, an indicative timeframe.
Michael Gove: The ideal situation from our point of view is that we have the transition period that is envisaged in the Withdrawal Agreement, and if it is the case, that the Environment Bill—as the Prime Minister has stated—will be the flagship measure when the Queen’s Speech comes in, then it should be legislated for and up and running before the end of that transitional period in 2020.
Q206 Alex Sobel: That is quite a long gap still, isn’t it?
Dr Coffey: The Interim Secretariat will be there. I have suggested to the team who will form the Secretariat that the new chair of that will be invited/appointed to the post by yourself or EFRA or both.
Michael Gove: It is the case that during any implementation period of course we will still be subject to the European law and ECJ supervision.
Q207 Chair: But we will not be if we leave with no deal, will we?
Michael Gove: No. I am just explaining to Alex exactly what my desired outcome would be.
Q208 Chair: How many people are in this Interim Secretariat?
Dr Coffey: From recollection, I think there are 16 fulltime civil servants.
Q209 Chair: They are DEFRA civil servants? Where have they been drawn from?
Dr Coffey: Off the top of my head, several are from DEFRA, but they will not be located in DEFRA, they will be located elsewhere. They will be separate: the IT is separate; separate e-mail; the website is ready. We do not want to get into big announcements about the Interim Secretariat, because we are all still hoping that we will not be leaving on Friday, 29 March without a deal.
Q210 Chair: Have you signed a lease on an office for the Secretariat?
Dr Coffey: They will be placed in another Government building, but not in DEFRA.
Q211 Chair: So physically distinct, but still in the shelter of Government?
Dr Coffey: They will still be civil servants. I think the important thing for the OEP in the future is that the intention is they are not civil servants, they are separate, but in order to have the Interim Secretariat ready, it is best to have civil servants there.
Q212 Chair: It is still a long way from the 60 to 120 that the Secretary of State was talking about for fully up and running though, isn’t it?
Dr Coffey: I recognise that, but it is not necessarily fulfilling all the roles that the OEP would do. It is an Interim Secretariat to try to facilitate some of the initial procedures that will be there.
Q213 Chair: It would be fulfilling all the roles of the Commission and the ECJ if we were to leave without a deal, would it not?
Michael Gove: Our domestic courts would be fulfilling some of those roles as well.
Q214 Chair: There is a policy gap, isn’t there?
Michael Gove: That is exactly why we are creating the OEP, it is why we have an Interim Secretariat, but it is the case again until Parliament changes it, then the body of EU law governing the environment will remain in place and on the statute book. Were anyone to break that law, then they could be taken to court. It is also the case that, as we know, under the principles, there are ways in which access to environmental justice is protected. I absolutely take your point. It is a suboptimal situation, but—
Q215 Chair: Not all of that EU law has been cut and pasted into our statutes yet, has it?
Michael Gove: To be fair, the civil service teams in DEFRA and elsewhere have been working at an incredible pace in order to ensure that of the 600 or so Statutory Instruments required across Government to take EU law into UK law, that all—save a very few—have now been passed.
Q216 Chair: Could you write to us separately—I do not want to detain the Committee with this—about how many pieces of EU environmental legislation, how many SIs are still outstanding?
Michael Gove: Still pending. Of course we will.
Chair: Thank you. Philip.
Q217 Mr Philip Dunne: I apologise for missing the first half hour of your evidence today. I want to talk a bit about the relationships with the devolved Administrations. The environment does not respect geographic boundaries in the same way as bureaucracies do. We have not heard anything I think for a year now on the status of the common frameworks. Could you give us an update on how many are outstanding?
Dr Coffey: There has been a significant amount of collaboration between the four Administrations on a lot of environmental measures being taken forward. There is still agreement, for example, on the setting up of a UK REACH. While that is a devolved matter, the four nations have agreed to work together to have one UK body and that is being debated in the House and is still to be debated in the Lords, I think tomorrow. I cannot quite recall, but in the next few days.
There are other things, where that has extended also to pesticides, it has extended to a wide range of the issues that we have discussed. There has always been the element of devolution so that the four Administrations can pursue different policies in a different way, but in line with the directed sort of outcome. We still need to formalise, but there has been significant progress, I think, on the memorandums of understanding as well as some of the hardwired elements that we have put through secondary legislation.
Q218 Mr Philip Dunne: On the secondary legislation, I am on the European Statutory Instrument Committee, so I see we are putting through a lot of Statutory Instruments for the devolved Administrations. Do you know how many have been passed in relation to common frameworks in the environment or how many are outstanding? It is slightly following on from what the Chair said.
Dr Coffey: The only one that I am aware of in environmental aspects is the REACH SI, which still has yet to be debated in the Lords. I know that there are SIs that are not critical for day one. I have one of those that will be laid to deal with a particular element and the cross-cutting SI has gone through as well. Beyond that, I am not aware of the portfolios of my fellow Ministers on what progress they have made in that regard.
Michael Gove: I think we have taken forward around 104 SIs and there is a small stock left remaining, which I think is in single figures, but I will write back with the exact number.
Dr Coffey: For example, biosecurity is something that can again be devolved, but we have agreed to work together. We have the same pest lists. That passed through the Commons yesterday and it passed through the Lords as well, I think. There is active work in progress continuing all that collaboration we have.
Q219 Mr Philip Dunne: In relation to the ability of the devolved Administrations to amend SIs subsequently, is that recognised that that power exists?
Dr Coffey: Yes, absolutely.
Q220 Mr Philip Dunne: Of course Northern Ireland at the moment are not able to do anything, because they do not have—
Dr Coffey: We are doing all the Northern Ireland legislation in the UK Parliament, so that has been going through the process. There have been instances where the Scottish Government or the Welsh Government have decided to use their own legislative vehicles, but the majority of SIs have been done on a UK-wide basis. There may be certain different elements of territorial extent or application, but in that case the Scottish Parliament has also been ratifying in effect those as well.
Q221 Mr Philip Dunne: Is it right that you have closer alignment with Wales than with the other devolved Administrations, because we have reached an agreement with Wales, which we have not with Scotland, and we cannot with Northern Ireland?
Dr Coffey: I am not sure what you mean, alignment on—
Q222 Mr Philip Dunne: Environmental regulation. You have touched on divergence. Divergence is not ideal because it might encourage a race to the bottom, which I think has been discussed with this Committee before.
Dr Coffey: Oh, I see.
Mr Philip Dunne: For example, my constituency carries some of the water pipeline that provides all the drinking water for Birmingham. It comes from Wales, so we have different drinking water regulations in one part of the country than another that might provide—
Dr Coffey: Those powers were already transferred under the Wales Act. We had an agreement with the Welsh Government. Some of those would not then be further transferred, at their request, so there is close collaboration, but as I say, there are already situations today where four Administrations can make different decisions. It happens rarely, but it can.
Michael Gove: With specific respect to water, there is a prior memorandum of understanding between the Welsh Government and our own on water. We have recently concluded that it does not have a direct environmental impact. There is a related one, a memorandum of understanding with the Welsh Government about the application of the WTO clause in the Agriculture Bill. More broadly, both the Welsh Government and the Scottish Government are consulting on how they would ensure that the principles that the OEP is meant to uphold will apply in their jurisdictions.
Q223 Mr Philip Dunne: Can I add one other question that goes back to the point you were making about REACH, Thérèse, that you think we will have the legislative structures in place to set up our own UK REACH? We touched on this before and I think you gave evidence to the Committee on the concerns that we have about the chemicals industry not being able to copy across and operate within a UK “me too” of REACH because the data does not belong to the EU, it belongs to the underlying providers. Have you found a way through that so that companies that need to buy chemicals at source in the EU and not in the UK can do so, in the event of no deal?
Dr Coffey: In terms of the REACH IT system, that is about registration, so that is the information that we have there. We have had back and forth about why we needed it. We think some of the trade associations, not the CIA, have indicated that we should in effect go back to a pre-REACH system, which we rejected. It is important that the regulator has the relevant information.
What has been good is that both Cefic and CIA have both asked their members to make sure that the contracts be amended so that the information can be given to both REACH and to UK REACH at no extra cost to people where the consortiums exist. We already know that many companies are setting up subsidiaries so they can do the necessary transfers, but also only representatives and I understand more and more are being used to do that. We are very alert to the concerns that have been generated, but we will continue to work with them and the HSE is the competent authority. It will also be on the front foot with companies that may experience difficulty.
Chair: Before we move on to Anna, because I am very acutely aware that you are going to have to run in about four minutes, Alex had a very quick follow-up.
Q224 Alex Cunningham: Yes, specifically on REACH. You have covered most of what I wanted to say. It has already been passed in the Commons some weeks ago. It is now heading for the Lords. The industry is still discontent with the SI. Is there scope for that to be changed at this stage? I am not quite sure what the protocol is, and the fact that it has been passed by the Commons already, but are there going to be changes to reflect the ongoing concerns of industry about the REACH regulations before it reaches the Lords?
Dr Coffey: The industry is clear that they want the regulations to be transferred rather than the regulations not go through the Lords.
Q225 Alex Cunningham: They are not happy with the regulations as published, are they?
Dr Coffey: I think there are aspects of it that we simply reject their assertions. There are other elements and in particular this is about the import of chemicals from non-EU in EEA areas where we are waiting for them to give us their evidence. So far they have not come up with a single example of where this will be a problem, but of course we are open to working with industry. We do not want to disrupt the supply chain and so there are still ongoing discussions with the Chemicals Industry Association in regard specifically to that issue. I am confident it will proceed next week in the Lords.
Q226 Anna McMorrin: Moving quickly on to waste and the consultation on extended producer responsibility schemes, you have mentioned five in the Resources and Waste Strategy. Which two are you planning to complete by 2022, which is when you said you wanted to have completed two by?
Dr Coffey: I think we had that discussion before, and the Committee was making a representation that fashion and textiles be included in that. Tyres are important, especially given some of the issues in particular about microplastics and particulate matter, so I think we are still yet to make that decision.
Q227 Anna McMorrin: Quickly then on the Deposit Return Scheme, which you are currently consulting on, when do you expect to introduce it?
Dr Coffey: I know that the document says 2023. I want it sooner than that. It would be ideal if it was across the country. There are different views between Scotland, and we are still considering what—
Q228 Anna McMorrin: Scotland are racing to become the first and are causing problems then potentially?
Dr Coffey: No, they are not causing problems at all.
Q229 Anna McMorrin: If you do not act a little quicker, then if there are separate schemes in Scotland, England and Wales that could cause producers problems and cost.
Dr Coffey: It could do, but it is open to the Scottish Government, indeed any of the Governments, to do a separate scheme. I do not believe that will be the outcome of where we are because I think there is also a consciousness about the effect on industry and consumers, but it is important that we get the right system. As I think I have said to the Committee before, the front end is very straightforward. It is the back end, how it gets financed, how it gets organised, that is the difficult side. That is why we are consulting extensively in collaboration with the Welsh Government and the Northern Irish Government.
Q230 Anna McMorrin: Quickly to finish, will the proceeds from the DRS go back into the system rather than be swallowed by the Treasury? That is what a lot of producers are asking.
Dr Coffey: I am not aware that there is a proposal to put the money into the Treasury where the element is not contained, but I think that is open for discussion as well in the consultation.
Q231 Chair: Thank you very much indeed, Minister. I am very conscious that you have to leave and thank you very much.
Perhaps we could explore some of these issues now with you, Secretary of State. We are looking at two out of five EPRs. Is it not important that this new Environment Bill contains the principle of extended producer responsibility and it can then be introduced by Statutory Instrument going forward? One of the weaknesses in the transposition of the original directive was that we only mentioned the three things that were set out in the EU, which is the electrical waste, the batteries, cars, whitegoods. We did not, as the French did, set a principle of polluter pays in law and then to allow SI secondary legislation to cover carpets, bedding, clothing and so on, all of these areas where the circular economy needs to be introduced. The principle will be legislated for in the Environment Bill?
Michael Gove: Yes.
Q232 Chair: I understand in the transition period that the EU is talking about bringing in an EPR for fishing gear. My apologies, I did not hear the Minister’s reply. Did she say that fishing gear was going to be included?
Michael Gove: We have not decided what the priorities were. We are very conscious of the work that this Committee has done on fashion. It is also the case that we are concerned about the impact that tyres have and there are a variety of related issues, but certainly I know the Minister has been very concerned about ghost gear and the particular problems that generates, so no firm decision has been taken.
Q233 Chair: If we are still in the EU and bound by EU law and the EU says we have to do fishing gear, we will do it then, will we not?
Michael Gove: If we are still bound by EU law then we absolutely will have to.
Chair: Thank you. A final question from Kerry.
Q234 Kerry McCarthy: I want to return to no deal. The Public Accounts Committee held an inquiry last week and I think it is fair to say there was a difference of opinion, with the Committee quite concerned about how prepared DEFRA is for a no deal, but the Department seemed very confident. There was a newspaper report last week about whether there would be enough chemicals to treat the water supply in the event of a no-deal Brexit. I think a Cabinet Office source said that was a problem. Do you disagree?
Michael Gove: I do not disagree. Let me try to answer comprehensively and concisely and then I hope that this will lead to the dispelling of fear. It was the case that working with Cabinet Office and others that we identified that if no action were taken then there “could” potentially be a problem in the import of chemicals required in order to make sure that we had safe drinking. That danger, having been spotted, steps were taken, including convening the Platinum group of water companies with Ofwat and with DEFRA officials in order to ensure that they properly interrogated their supply lines and made sure that, come what may, we would have all the chemicals that we need.
While one can never say with 100% assurance that everything will always go right, we are as confident as anyone can be that all the actions have been taken in order to ensure that the chemicals are available and will be available to maintain the very highest standards of drinking water.
Q235 Kerry McCarthy: Can I ask about the food supply chain? A Westminster Hall debate a couple of weeks ago, another one of your Ministers—I think the Minister for Food Policy—replied to about the impact on public sector catering and the problems. One problem would be shortages of food if there are blockages at ports and delays and so on, particularly fresh vegetables and fruit that do not have a long life span. There is also real concern about stockpiling, panic buying and a rise in food prices. What sort of strategy do you have to cope with all of those eventualities? Because you can tell people not to panic buy, but if that happens then the supermarket shelves will be empty and that will have a knock-on effect in terms of public sector contractors trying to get hold of supplies from their usual sources.
Michael Gove: Our first thing is to make sure that we have as frictionless as possible access to the UK market, which is why our approach is that we will not apply checks to materials that come from the EU because we believe that the same standards will apply a day, a week and a month after exit as do immediately beforehand. We cannot obviously legislate for exactly what will happen in Calais and elsewhere, which is why there are various assumptions about what the impact will be.
We are confident that almost all foodstuffs will flow in in a way that is consistent with effective supply chains. The particular vulnerabilities, depending on the time of year—you are absolutely right—are fresh fruit and vegetables and their very perishable nature. It is the case that a number of retailers and others in this country have used all the available storage space for ambient goods, so there should not be a problem there, but for some of these fresh goods there is potentially a problem. I do not think it is going to be the case that anyone in this country is going to face shortages. I do think, as I have said before to other Committees, there may be an impact on price rises and we have been talking to the Department of Health and Social Care, the Ministry of Justice and others about how any of those price rises might need to be absorbed.
Q236 Kerry McCarthy: When you say “absorbed” do you mean central government funding to assist them? Schools, for example, they do not have the space in their budget to absorb anything.
Michael Gove: We have a variety of contingency plans so that if different parts of the public sector are adversely affected by any of the impacts of a disorderly exit we can take steps.
Q237 Kerry McCarthy: In terms of the tariffs that have been published and so on, I was talking to the British Poultry Council very recently and they produce 28 million legs of chicken a week. If there is a disruption in trade and say we cannot sell them for any reason, cannot export them, there is a real issue about what we do with them. The thing is with chicken they have that 35-day life, so as soon as you have disposed of one lot of chicken that you cannot sell there is another 28 million legs of chicken that we cannot sell. Have you looked at that, about what we do if we have loads of food that we just cannot dispose of?
Michael Gove: Yes. I think the premise is a fair one; the conclusion is slightly toppy. There is a very good report in The New York Times analysing the way in which the industry is already taking account of this. In essence, you are absolutely right, white poultry meat has a higher level of popularity in this country than brown poultry meat. A lot of our brown poultry meat is sent abroad, but it is already the case that within the industry steps are being taken in order to ensure that a variety of dishes are being reformulated, so that there is a high proportion of brown meat within them, so the industry is already taking steps. I also think that, as in a number of areas, the market will respond to some cuts of meat, which while they may not have been as popular in the past, will become more competitive in certain circumstances.
The other thing that I would say is that we have taken an approach towards tariffs overall that is designed to ensure as much as possible that we have price neutrality for consumers in this country.
Q238 Chair: Can I just follow up on tariffs? Because one of the complaints from the Farmers’ Union of Wales has been about the protection of British beef and lamb farmers with the maintenance of tariffs, but no tariffs on products from across the Irish border. How is that going to work?
Michael Gove: We have a commitment to keeping the Northern Ireland border a free and open border. As a result of that, that means that we will not be applying anything other than minimal checks. Again, one of the reasons why I think that the Withdrawal Agreement is the right agreement is that it succeeds in ensuring that we can continue to have frictionless or near frictionless access to EU markets, as they can to ours, in a way that allows us to diverge on those areas that we need to. It is not just the Farmers’ Union of Wales, a number of people have pointed out that while we can have tariff protection overall and that will be a means of making sure that vulnerable sectors of agriculture are protected, a commitment to a frictionless border—or as close as possible to a frictionless border in Northern Ireland—requires that we do not have those checks.
Chair: We can get on to the Withdrawal Agreement and the fact that there is a backstop so that that frictionless trade can continue, but I am going to ask Philip for a quick question.
Q239 Mr Philip Dunne: I have a follow-up on trade. Clearly frictionless trade is what we should be driving for. If we do not get it, the tariff schedule that has been published now would put dairy farmers and sheep farmers—and I am a sheep farmer, not a dairy farmer, so I have some understanding of this—at a very considerable disadvantage in seeking to export into the EU because the relevant WTO standards in the EU are something like seven times higher for dairy products than the tariff we would have here. That would lead to the loss of export markets for both those two sectors. I am sure you would agree that would lead to very significant reductions in price to consumers here—that is arguably a good thing, temporarily—but would put the farming businesses themselves at significant risk of collapse as well as the processing industries that support them. Do you have emergency support proposals to sustain those industries in the event of no deal?
Michael Gove: Yes.
Q240 Mr Philip Dunne: Are you able to elaborate on them at all?
Michael Gove: Not at this stage.
Q241 Chair: Is it financial?
Michael Gove: Yes. There are clear market sensitivities, but we have the legal powers and the political commitment to making sure that we will intervene in vulnerable sectors in order to help.
Q242 Chair: Back to the 28 million chicken legs, what about the thousands of lambs that will not be able to be exported as well?
Michael Gove: They will be able to be exported but they will face a tariff. There are other markets that we can use. It will be the case, as I pointed out, that the price of lamb domestically will drop. That means it may be a more attractive option, given that lamb is more expensive than some other meats, and so it may well be the case that it is purchased more enthusiastically in the UK.
Q243 Chair: Until farmers realise that they are not getting the profit and they go out of business. It will be a temporary blip.
Michael Gove: It will not surprise the Committee to know that this has been the subject of a great deal of thought and we have an action plan for intervention, but by definition it will be unwise at this stage for me to lay out exactly what that plan would be, because it might have an impact on commercial decisions that a variety of players in the market might take at this stage.
Q244 Chair: Extraordinary times and amazing that we cannot hear about what could or could not be happening from your Department in nine days’ time, but thank you very much for being with us here this afternoon.
Michael Gove: Nine days’ time is quite a long vista at this stage.
Chair: It certainly is in the political landscape in which we find ourselves. Can I thank through you your officials, who have engaged with us with great patience and good humour and tolerance?
Michael Gove: It is very kind of you to say. Thank you.
Chair: We have found their input very helpful. Can I also say how annoyed we are that you have stolen a member of our Committee—poacher turned gamekeeper—and can you pass on our very good wishes to Robert Goodwill from this Committee?
Michael Gove: I certainly will. That is very kind of you. Thank you very much.
Chair: Thank you very much, Secretary of State.