Amendment 26

Environment Bill - Report (2nd Day) – in the House of Lords at 7:27 pm on 8th September 2021.

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Lord Anderson of Ipswich (CB):

Moved by Lord Anderson of Ipswich (CB)

26: Clause 38, page 22, line 31, at end insert—“(2A) The OEP may include in the application for an environmental review a request that the court also review additional alleged conduct constituting a failure to comply with environmental law where—(a) the additional conduct is similar to, or related to, the conduct described in the decision notice, and(b) the additional conduct is conduct of—(i) the public authority to whom the decision notice was given, or(ii) another public authority, where that additional conduct indicates there may be systemic failures to comply with environmental law.(2B) Where subsection (2A) applies—(a) the OEP need not have given an information notice or a decision notice to the public authority to whom the additional conduct relates in respect of that additional conduct, and(b) the court may review that additional conduct if it thinks it reasonable to do so.”Member’s explanatory statementThis amendment allows greater flexibility to consider multiple instances of misconduct rolled up into one single application, rather than issuing separate proceedings in respect of each individual incident.

Photo of Lord Anderson of Ipswich Lord Anderson of Ipswich Crossbench

My Lords, I am grateful for the opportunity to take these amendments before the dinner break. Like other nobles Lords, I will be as brief as I can.

The purpose of these cross-party Amendments, 26, 27 and 28, in the now-familiar dentistry metaphor, is to provide the OEP with a working set of teeth. They do not give enforcement powers to the OEP itself, they do not allow it to claim damages and they do not replicate the fining power that gave the European Commission the big stick that it used so effectively to concentrate minds. All they do is allow the High Court its usual discretion to enforce the environmental duties of public bodies by the grant of appropriate remedies. That is a modest aim but also, I suggest, a necessary one if the OEP is to achieve even baseline credibility, whether at home or internationally, as an enforcement body.

The “key facts” note on the OEP, circulated earlier today, correctly states that the OEP will be able to bring legal proceedings against public authorities but is less forthcoming about when it can do that and to what purpose. Three other key facts, not dwelled upon in the Government’s note, lie behind these three amendments. First, the OEP is unique among interested persons and bodies in being disqualified from bringing proceedings for judicial review, save in urgent cases. My Amendment 28 seeks to correct that.

Secondly, the bespoke process of environmental review, designed for the OEP to keep public bodies up to the mark, is available only after each individual breach of duty and each repetition of such a breach has undergone the cumbersome pre-litigation process set out in Clauses 32 to 37. My Amendment 26 would introduce greater flexibility and indeed speed into that process.

Thirdly and most significantly, Clause 38(8), the subject of my Amendment 27, introduces to environmental review a presumption, unique I think in our law, against the grant of any meaningful remedy. Victory for the OEP is rewarded only by a statement of non-compliance, which has no legal effect and which the Minister accepted in Committee is “not … considered a remedy”.

For a remedy to be granted, the court must prove a formidable series of negatives: that its grant would not be likely to cause substantial hardship or prejudice to any person, whether before the court or otherwise; and that a remedy would not be detrimental to good administration. Where such competing interests exist, which in big or difficult cases they are bound to, as was illustrated by examples given in Committee, the High Court is simply neutered, signalling to public authorities and developers alike that the environmental duties of public bodies cannot be enforced by the OEP when there may be private interests that could suffer. Thus, in our previous debate, the noble and learned Lord, Lord Hope, spoke of the need to retain in this field the flexibility of judicial review, and the noble and learned Lord, Lord Mackay of Clashfern, said that this clause places environmental law on a grade below other laws, so that, as he put it, although you fail to comply with it, you can still be right.

I am grateful to the Minister, the Bill team and the Secretary of State for our repeated discussions. They registered their concern about the possible bypassing of short judicial review time limits. Perhaps that is to exaggerate the promptness of judicial review, for which the time limit starts to run only after the completion of a long administrative process, but in any event, the point of environmental review, as Clause 38(7) firmly indicates, is not to duplicate judicial review but to complement it by providing a means to address systemic cases in respect of which judicial review time limits are not appropriate. The OEP is stepping into the shoes of the European Commission, which was not hamstrung by time limits but which could still seek meaningful remedies from the European court. One wonders why our own courts should be barred from granting meaningful remedies to the OEP.

However, we have responded to the Government’s concerns by making Amendment 27 as easy as possible for them to accept. Now written on to its face is the liberty of the court to refuse a remedy when the interests of third parties or of good administration would render this unjust. Further flexibility will be provided by the Judicial Review and Courts Bill in the shape of suspended and prospective-only quashing orders, remedies which, by the first and unobjectionable part of Clause 38(8), will be read over into environmental review.

The OEP, in seeking relief, and the courts in deciding whether or not to grant it, can be counted upon to weigh the competing considerations and to act responsibly. I think the Minister well understands—whatever he is required to say from the Dispatch Box—that the Government cannot credibly claim to have independent and effective safeguards while protecting themselves from being held to account by the very body established for the purpose. The Minister continues to offer discussions and I thank him for that, but if those discussions are to be productive, I sense that one of two things will have to happen this evening: that he undertakes to think again, or your Lordships encourage him to. With that in mind, I propose to test the opinion of the House, if necessary, on Amendment 27.

Photo of Lord Duncan of Springbank Lord Duncan of Springbank Deputy Chairman of Committees 7:30 pm, 8th September 2021

My Lords, I am not a natural rebel but I stand in rebellion today. I am troubled by what I see before me. It is always difficult to follow the noble Lord, Lord Anderson, because he has nailed all the key elements. I seek not to repeat but rather to associate myself with what he has said.

I will draw attention to only one aspect. The Explanatory Notes, which, very helpfully, were sent out earlier today, drew attention to one aspect: that the smooth functioning of the planning system depends on investors and developers having confidence that, past a certain point, permission will be upheld. I cannot help but think that we are looking at the smooth functioning of the planning system rather than of the environment, and that would cause me some unease.

For that reason, I am afraid that I must support the noble Lord, Lord Anderson, and will continue to do so until we can achieve a change, which I believe is both necessary and proper.

Photo of Lord Hope of Craighead Lord Hope of Craighead Chair, High Speed Rail (West Midlands - Crewe) Bill Select Committee (Lords), Chair, High Speed Rail (West Midlands - Crewe) Bill Select Committee (Lords)

My Lords, I spoke in support of the amendment in Committee, and I think it is right that I comment on the slightly changed amendment before us. I support it entirely and there are elements in it I would have thought the Government would welcome, particularly proposed new subsection 8A(b), where the court has to have regard to

“the likelihood that the grant of a remedy would cause”,

among other things,

“any detriment to good administration.”

This is a very carefully drafted amendment. It has all the elements one would expect to find in a Bill dealing with the subject we are concerned with. It is also looking at the interests of justice, which any court would want to do in any case. I support the amendment.

Photo of Lord Garnier Lord Garnier Conservative

My Lords, we are all being very diffident this evening. I apologise because I did not speak at Second Reading or in Committee on this Bill, but I am as concerned as my noble friend Lord Duncan and the two noble Lords on the Cross-Benches about the way this Bill is going to deal with this particular subject. Unless this amendment is made to the Bill, we will be the poorer for it.

Photo of Lord Thomas of Cwmgiedd Lord Thomas of Cwmgiedd Chair, Consolidation, &c., Bills (Joint Committee), Chair, Consolidation, &c., Bills (Joint Committee)

My Lords, I spoke to and signed the amendment in Committee. I entirely support the new wording. I said in Committee that the judges could be trusted. The Government might have had a little doubt about some of it but, with the changes to the clause, I cannot see what greater protection any Government could legitimately seek.

Photo of Baroness Parminter Baroness Parminter Chair, Environment and Climate Change Committee, Chair, Environment and Climate Change Committee

My Lords, I added my name to this amendment in the name of the noble Lord, Lord Anderson of Ipswich, and we wholeheartedly support it. My particular concern is around the planning issue, which the noble Lord, Lord Duncan of Springbank, has rightly articulated. My worry is that the Government have introduced the provisions they have because they fear that there is currently too much weight given to environmental protection in the planning system. That is something we must oppose. In Committee, the noble Lord, Lord Krebs, said that it

“biases the scales of justice”—[Official Report, 30/6/21; col. 810.] and changes the balance away from the environment. That is the problem and that is why we on these Benches support this amendment.

Photo of Baroness Jones of Whitchurch Baroness Jones of Whitchurch Shadow Spokesperson (Environment, Food and Rural Affairs)

My Lords, I add my voice in support of these amendments. We very much concur with the arguments put forward this evening. We agree that these proposals are quite modest. I think the noble Lord, Lord Anderson, has been quite modest in his redrafting. I hope, as I said in the previous group, that if these amendments are passed this evening, the Government will use the opportunity to have a proper dialogue with those who have been working on these issues. I am sure the Minister has got the sense of the strength of feeling on this and we hope that we will not see these amendments in any shape or form coming back at a later stage. I look forward to the Minister’s response.

Photo of Lord Goldsmith of Richmond Park Lord Goldsmith of Richmond Park The Minister of State, Department for Environment, Food and Rural Affairs, Minister of State (Foreign, Commonwealth and Development Office)

I thank all noble Lords for their brisk contributions. The noble Lord, Lord Khan, is looking hungry. I also thank the noble Lords, Lord Anderson of Ipswich and Lord Krebs, for their engagement throughout the various stages, including a number of discussions with me and separate discussions with officials. I have carefully considered the government position on these clauses and I hope I can persuade noble Lords that the approach we are taking is the right one.

First, on Amendment 26, the Government support the intention to ensure that the OEP’s enforcement procedures resolve issues as efficiently and effectively as possible. However, it is only right and appropriate that before the court is asked to examine issues in an environmental review, the OEP has given the public authority adequate opportunity to respond and to remedy the problem directly. This follows a similar principle to the pre-action protocols which must be followed for other types of legal proceedings, including, for example, judicial review, as well as personal injury and clinical negligence proceedings, where issues are set out in writing prior to court action.

Many issues will be resolved through constructive dialogue in the course of an OEP investigation and through the serving of an information notice. That is what we want. Where required, this would then be followed by a decision notice. This will ensure that potential failures are resolved at the earliest possible opportunity, avoiding the need for time-consuming and costly litigation in most cases, and better enabling the OEP to drive systemic change.

Turning to Amendment 27, I reiterate the importance of the existing provision under Clause 38(8). We have to recognise the unique context in which environmental reviews will be occurring, potentially many months after decisions were taken and outside normal judicial review time limits. Providing protection for third parties who may have acted in good faith on the basis of certain decisions is therefore essential to protect fairness and certainty, values that lie at the heart of our civil justice system.

As I have outlined before, judicial discretion alone would not be sufficient to provide this certainty, as the strict time limits to bring a judicial review themselves demonstrate. We do not solely rely on the courts to balance the impacts of delay against other factors in this context, as the resulting uncertainty would be too great and unfair on third parties. Environmental reviews will be taking place outside judicial review time limits, so alternative protections are necessary.

Furthermore, the provision in Clause 38 to protect third-party rights is not novel. Indeed, it is an extension of the existing position for challenges—for example, under Section 31(6) of the Senior Courts Act 1981. Some noble Lords have argued today and in previous debates that the provision in Clause 38(8) renders the OEP’s enforcement framework redundant but that is absolutely not the case. It is important to note that restrictions in Clause 38(8) are unlikely to be triggered in most cases that the OEP will take forward.

In response to comments by the noble and learned Lord, Lord Hope, the Bill guides the OEP to focus on cases of national importance. Therefore, individual local planning decisions most likely to impact third parties are unlikely to be pursued. Even if they were pursued, the Bill sets out that the court is restricted from granting remedies only where to do so would cause “substantial” hardship or “substantial” prejudice to the rights of any person, or be detrimental to good administration. The court will have discretion to consider and apply the test as set out in the Bill, not Ministers or the Government.

Cases where remedies could require a change in policy or in the way in which legislation is to be interpreted would be unlikely to invoke those safeguards. Those are the cases that we expect the OEP to focus on. Take, for example, an alleged failure by government to meet a statutory environmental target. A court could consider granting a mandatory order requiring government action, and although that may have some impact on third parties such as local businesses, it is unlikely to amount to substantial hardship or prejudice. As I have tried to explain before, an individual or business must reasonably expect some changes in an evolving regulatory landscape. But that is different from the question of the status of an existing planning permission, for example, where there is a greater expectation of certainty. As such, the existing provision is appropriate, and this proposed amendment could cause damaging uncertainty.

Finally, I turn to Amendment 28. Clause 39(1) is vital to providing clarity when the OEP is considering enforcement action. The concern is that removing the urgency condition would create confusion and uncertainty as to which route the OEP should pursue for any given case. To enable the OEP to bring standard judicial reviews during the normal time limits would limit the possibility of the wider benefits that could have been delivered through the OEP’s bespoke notice stages.

By liaising directly with public authorities to investigate and resolve alleged serious breaches of environmental law in a targeted manner, the OEP will be able to drive systemic environmental improvements. This will lead to better outcomes for complainants, the public and the environment, wherever possible without the need to resort to costly or time-consuming litigation. Unlike judicial review, there are no time limits in which the OEP can apply for an environmental review. This is to allow the OEP sufficient time and opportunity to resolve the issue through its notice processes. It will give complainants the confidence to attempt to resolve matters through the internal complaints procedures of public authorities in the knowledge that, if the matters were not resolved, they could bring them to the attention of the OEP, who could bring legal challenge if necessary. The proposed amendment would therefore lead to unnecessary litigation, which would ultimately limit the OEP’s ability to effectively focus its activities on holding public authorities to account on serious breaches of environmental law and achieving long-term systemic change. I should again emphasise that the Government have taken considerable time to consider these matters, but we are confident in our position.

Before I conclude, I should emphasise that the OEP’s enforcement powers are different from, and will operate more effectively than, those of the European Commission. That point has been made by a number of noble Lords as a counterpoint. The OEP will be able to liaise directly with the public body in question to investigate and resolve alleged serious breaches of environmental law in a more targeted and timely manner. In environmental review, the OEP can apply for judicial review remedies such as mandatory quashing orders, subject to the appropriate safeguards, which will work to ensure compliance with environmental law. The EU Court of Justice cannot issue those kinds of remedies to member states.

I hope that I have at least gone some way towards reassuring noble Lords and I urge them to withdraw or not move their amendments.

Photo of Lord Anderson of Ipswich Lord Anderson of Ipswich Crossbench 7:45 pm, 8th September 2021

I am grateful to all noble Lords who have contributed to this short if somewhat one-sided debate and, of course, to the Minister for his characteristically courteous and speedily delivered response.

In view of the time, I do not seek to summarise the excellent points made in support of these amendments. I simply pick up one point made by the Minister when he spoke of the need for certainty, which, as our Amendment 27 accepts, is an important factor in the court’s discretion. The need for certain outcomes needs to be balanced against the need for lawful outcomes, which is I think the point that the noble Lord, Lord Duncan, was making; that balance can be performed by the courts only in the individual case and not by preordaining the result.

Having listen carefully to the Minister, I see a stark contrast between the wish to portray these clauses as an effective series of remedies and the reality that they fall well short. I regret that the Minister has not been able to give the requested assurances and, for that reason, I propose to test the opinion of the House on Amendment 27.

Photo of Lord Anderson of Ipswich Lord Anderson of Ipswich Crossbench

I am so sorry. I meant to move the amendment but put only Amendment 27 to the vote. I must apologise that I did not rehearse myself in the proper language.

Amendment 26 withdrawn.