Motion A1 (as an amendment to Motion A)

Part of Environment Bill - Commons Reasons and Amendments – in the House of Lords at 4:00 pm on 9th November 2021.

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Photo of Lord Anderson of Ipswich Lord Anderson of Ipswich Crossbench 4:00 pm, 9th November 2021

My Lords, having pestered the Minister since well before Second Reading for meaningful judicial remedies on environmental review, I will speak to Motion B and Commons Amendments 33C and 33D, which I believe are the product of negotiations between a variety of departments —some of them powerfully opposed to what they see as constraints on development.

While I thank the Minister and his colleagues at Defra for shouldering that task, I sense that the imprint of the Treasury and the Department for Levelling Up, Housing & Communities is visible on the end result. The good news is that the courts are now to be trusted with a discretion over whether to grant a remedy, even if substantial hardship or prejudice may be caused to developers or other third parties. The bad news is that this discretion is, as the Minister has said, weighted: weighted in favour of the developer. Uniquely in our law, the court will be barred—save for an exceptional public interest reason—from granting a remedy in such cases, even if it is satisfied that a remedy is necessary to prevent serious damage to the environment or to public health. The Minister’s example of the harmfully polluting factory makes just that point.

The noble and learned Lord, Lord Mackay, spoke in Committee of an underlying feeling that environmental law is to be

“a grade below some other laws so that, although you fail to comply with it, you can still be all right”.—[Official Report, 30/6/21; col. 815.]

I regret that, while this amendment does achieve a limited upgrade for environmental law, a good deal of truth remains in his comment.

It was tempting—but would in the end have been futile—to fight on so, making the best of it, I end with two positive remarks. First, I draw attention to the helpful indication that the Minister has just given about what is intended by the obscure phrase “exceptional public interest reason”. By his own account, such a reason will exist whenever the public interest in preventing serious harm to the environment or to human health substantially outweighs the interest in preventing hardship to a third party. Less benign interpretations of that phrase might have been imagined, so I am grateful to him and his counterpart in the other place, Rebecca Pow, for their clarity and their express acknowledgment that their statements may in future be drawn on by the courts as a legitimate aid to statutory interpretation under Pepper v Hart.

Secondly, I take comfort in the fact that even after what we must assume to be the passage of the Judicial Review and Courts Bill, the full panoply of court remedies will remain available on judicial review—if not at the suit of the OEP, which will be allowed to bring judicial review proceedings only in urgent cases, then at least to other claimants with a sufficient interest. In that context, I note the Government’s view, expressed from the Dispatch Box on 30 June, that

“the OEP’s complaints and enforcement functions would not affect the rights of other persons to bring legal challenges against public authorities by way of a judicial review”.—[Official Report, 30/6/21; col. 823.]

In those circumstances, with profound thanks to the noble Lords from all parties and none who have signed and supported various amendments on this theme, and to the Minister and the Bill team, I offer a qualified but sincere welcome to Amendments 33C and 33D.