Clause 33 - Decision Notices

Environment Bill – in a Public Bill Committee at 3:00 pm on 5th November 2020.

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Amendment made: 206, in clause 33, page 19, line 36, at end insert—

“(aa) explains why the OEP considers that the failure is serious, and” —

Under clause 33 the OEP may give a public authority a decision notice if it is satisfied, on the balance of probabilities, that the authority has failed to comply with environmental law, and it considers that the failure is serious. This amendment requires the decision notice to explain why the OEP considers that the failure is serious.

Photo of Alan Whitehead Alan Whitehead Shadow Minister (Department for Business, Energy and Industrial Strategy) (Energy and Climate Change), Shadow Minister (Business, Energy and Industrial Strategy)

I beg to move amendment 118, in clause 33, page 19, line 39, at end insert—

“(2A) A decision notice may also direct the public authority to rectify the failure to comply with environmental law.

(2B) A public authority must comply with a direction under subsection (2A).”

This amendment allows the OEP to require a public authority to remedy a failure to comply with environmental law.

I am sure the Committee will be delighted that this provision does not involve the words “serious”, “must” or “may”, or anything like them. What it does involve is a suggestion by the Opposition that the OEP should be given additional powers on decision notices to direct a public authority about which a decision notice has been made. When discussing the previous clause, we have seen that the OEP must consider seriousness in the information notices. When it comes decision notices, the same applies. A decision notice “may” follow from an information notice, and the definition of the decision notice in 33(2) states that it

“describes a failure of a public authority to comply with environmental law, and

(b) sets out the steps the OEP considers the authority should take in relation to the failure”.

However, it does not say anything about what the public authority ought to do to rectify that failure and comply with environmental law. The OEP has a pretty strong requirement to go through information notices and decision notices, but it steps back at that point; it has issued its decision notice, and that is the end of it.

Our amendment takes that process a stage further by suggesting that the OEP should also have the power of direction: a power to require the public authority to rectify its failure to comply with environmental law, which the OEP has identified through the information notice and the decision notice. The amendment also states, in order to make it clear, that the public authority “must comply” with the direction that the OEP has made. The amendment would therefore give the OEP a substantial new power—one that is absolutely consistent with the strength of action it is required to take in the route between information notices and decision notices. That would be a wholly good thing as far as good governance by the OEP is concerned. It would be a clear note of understanding that if a public authority does come by a decision notice from the OEP, it should expect that there will be consequences. The OEP would be empowered to provide those consequences and ensure that compliance with the subject of a decision notice could be followed up.

Photo of Ruth Jones Ruth Jones Shadow Minister (Environment, Food and Rural Affairs) 3:15 pm, 5th November 2020

I rise in speak in favour of the amendment. My hon. Friend has made an eloquent point about the steps so far. We seem to be teetering on a cliff edge. We have got as far as accepting that there is an issue, the problem has been highlighted and solutions have even been suggested, but the wording of the clause does not give us an actual solution. The public authority must rectify the failure, but that is not enshrined in law. We all know that if we want something to be done, it must be enshrined in law. “Put it in the Bill,” is our usual cry.

Some of us—those who have worked in health, for instance—well remember that Crown immunity used to be given to NHS buildings. Problems and solutions were identified, but there was never any enforcement because of Crown immunity. I am sure that the Government do not want that to happen with such an important Bill, and that is why we have tabled the amendment.

Photo of Leo Docherty Leo Docherty Assistant Whip

It is, of course, important that the OEP’s enforcement framework is robust. However, we do not consider that binding notices would be an effective or appropriate means of achieving that. Decision notices are an important part of the OEP’s enforcement framework. They allow the OEP to set out the nature of a failure and recommend the remedial steps that a public authority should take in response. If the public authority chooses not to follow the recommended remedial steps—for example, because it believes that it is correctly applying the law for which it is responsible—the OEP can refer the matter for an environmental review. We would expect the OEP’s decision notice to form part of its evidence submission in an environmental review, and for this evidence to be given appropriate consideration as the view of an independent body. This will be the most effective way for the OEP to address cases of non-compliance.

Furthermore, the provision for binding notices through this amendment would be inappropriate for three key reasons. First, if the amendment were accepted, the OEP would effectively be able to superimpose its own decisions in place of those made by the relevant authorities appointed or elected for this purpose. Secondly, current protections for third party rights in the environmental review process would be lost. That could be damaging for businesses and cause extremely unhelpful uncertainty. Thirdly, without provision for an appeals mechanism, the public authority would have no right to challenge the OEP’s judgments, other than making an application for judicial review. The enforcement framework set out in the Bill will ensure that cases are resolved as quickly as possible, with powers to overturn decisions resting with the courts, as is appropriate. I therefore ask the shadow Minister to withdraw the amendment.

Photo of Alan Whitehead Alan Whitehead Shadow Minister (Department for Business, Energy and Industrial Strategy) (Energy and Climate Change), Shadow Minister (Business, Energy and Industrial Strategy)

I thank the Minister for that response. Our suggestion that the OEP ought to have a more serious power has to some extent been answered with reassurance by the Minister. However, I am unsure whether the Minister ought not to consider, for future reference, not necessarily the exact wording of this amendment, but the merit of giving the OEP what might be described as shots in the locker. Perhaps that could be done entirely as the Minister has described, or perhaps other provisions need to be added, although not necessarily this one. The process needs some thought, and I hope that the Minister will give it some thought as we move towards the introduction of the OEP. I will therefore not pursue the amendment, in the confident thought that the Minister will give the matter some consideration for the future. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 33, as amended, ordered to stand part of the Bill.

Clause 34 ordered to stand part of the Bill.