This amendment replaces a reference to the Upper Tribunal with a reference to the court, which means either the High Court or the Court of Session. Similar changes are made by Amendments 210, 211, 212, 214 and 216.
This group of amendments will move the environmental review process from the upper tribunal to the High Court. Having reflected further on how that process will fit within the wider landscape of environmental mitigation, we have identified a risk that hearing environmental reviews in the upper tribunal could introduce unnecessary complexity and, potentially, inconsistency. This change is therefore intended to create greater coherence, clarity and consistency and is in the interests of good administration. First, the change will ensure that all the OEP’s legal proceedings are heard in a single forum, the High Court, regardless of whether they are brought as an environmental review following normal enforcement procedure or as an urgent judicial review.
Secondly, the change will ensure that all alleged breaches of environmental law are heard in the same forum, regardless of who has brought claims. For example, wider environmental judicial reviews brought by non-governmental organisations are heard in the High Court and environmental reviews brought by the OEP will now come to the same forum. That should help to promote a consistent approach towards the interpretation and application of environmental law. It is important to note that this change of legal forum does not in any way affect the legal test or principles that will be applied in an environmental review, and nor does it affect the OEP’s access to legal remedies as such.
This is a substantial group of amendments that all have the same effect—to transfer proceedings in a variety of different areas from the upper tribunal to the High Court.
I am—mercifully, it might be said—not a member of the legal profession, and one of the few Members of Parliament who is not, but I am somewhat puzzled about how this provision happened as an amendment in earlier proceedings of the Bill. When the Bill went off for pre-legislative scrutiny by the Select Committee on Environment, Food and Rural Affairs, that Committee gave some recommendations and thoughts on the question of the upper tribunal and, indeed, of the High Court, judicial review and environmental review.
At that point, the Government’s response to the EFRA Committee and its pre-legislative scrutiny report was as follows. Noting the Committee’s recommendation, the Government stated that
“we have made provision for a new environmental review mechanism in the Upper Tribunal for the OEP to bring legal challenges”— that is, the Government made such provision. I emphasise this next sentence:
“The approach will have a number of benefits compared to that of a traditional judicial review in the High Court. In particular, taking cases to the Upper Tribunal is expected to facilitate greater use of specialist environmental expertise.”
At the point of pre-legislative scrutiny—this is how the Bill stood, before we all disappeared for a while—the Government appeared to be not only in favour of taking cases to the upper tribunal, but advocating that because they expected it would
“facilitate greater use of specialist environmental expertise.”
Although the Bill was not in front of us for a time, nothing has happened in the legal world, as far as I know, to cause that judgment to be reversed. No new legislation or proceedings are in place; all is as it was.
The Government had judged that the upper tribunal approach was perfectly okay, so it is unclear why fairly strong support for continuation of the clearer upper tribunal route with an environmental review has been so comprehensively replaced with reference, under the judicial review mechanism, to the High Court. Perhaps during lockdown some people had too much time on their hands—they were not getting out enough or whatever—and thought they would tinker around with the provision.
People who understand these matters better than I do have suggested that that could undermine the holistic approach we might expect the OEP to take, which could have been supported in the upper tribunal. That is due, among other things, to how a tribunal has a less adversarial approach than the High Court, and the lowering of procedural requirements between the similar but different-in-name processes of environment review and judicial review could create confusion for court users and practitioners. There are a number of cons to the change—that may be what the Government thought when they responded to the EFRA Committee with a robust view that the upper tribunal would give
“greater use of specialist environmental expertise” in determining, in a non-adversarial way, how such matters should progress.
Indeed, my hon. Friend makes the point about specialist environmental expertise in a far better way than the Government did to the EFRA Committee. Among other things, the upper tribunal is not adversarial; it is, in effect, inquisitorial, allowing such expertise to come to grips with an issue in an atmosphere conducive to shining light on it, rather than the knock-down, drag-out fight between two sides of the High Court. The Government would be well advised to listen to her point carefully.
Again, this is not an issue on which we wish to divide the Committee, but we put a big question mark over why this decision has been made, which appears to go completely against the Government’s previous position, and whether the advantages that the Government think this change in procedure will have are not outweighed by the disadvantages that a number of people have raised, including my hon. Friend the Member for Newport West.
I suggest again that it would be good if the Government consulted further before deciding that this is how the Bill will be shaped. They need to reflect on whether there are a greater number of considerations against the change than for it and whether they are happy that, after passing through all stages in this House and the other place, the Bill will emerge in its final state with this provision intact.
Amendment made: 208, in clause 35, page 20, line 40, at end insert
‘, but only if—
(a) it is satisfied, on the balance of probabilities, that the authority has failed to comply with environmental law, and
(b) it considers that the failure is serious.’—
This amendment provides that the OEP may only bring an environmental review against a public authority if it is satisfied on the balance of probabilities that the authority has failed to comply with environmental law, and it considers the failure is serious. This aligns the conditions for bringing an environmental review with the conditions for giving a decision notice.
‘(1A) Where the OEP has given a decision notice to a public authority but has not applied for an environmental review, any person with sufficient interest may apply for an environmental review.’
This amendment allows any person to apply for an environmental review where the OEP decides not to.
‘(4A) A person who has made a complaint under section 29 may intervene in an environmental review which relates to that complaint or an issue which the Upper Tribunal considers is related to the issue in that complaint.
(4B) Any person with sufficient interest may make an application to the Upper Tribunal to intervene in an environmental review.
(4C) The Upper Tribunal may not order an intervener to pay the costs of any relevant party to the proceedings in connection with the proceedings.
(4D) The Upper Tribunal may not order a relevant party to the proceedings to pay the intervener’s costs in connection with the proceedings.’
This amendment allows relevant people to intervene in environmental reviews and any other person to apply to intervene in environmental reviews. It also makes provision about payment of costs of proceedings.
These two amendments are really important for completing the process of environmental review and the way in which an environmental review may come about and be discharged through the OEP and beyond. As we have seen, there are circumstances in which the OEP may decide that something has occurred that causes it to take action through notices and various other things but not to pursue an environmental review in its entirety.
These amendments attempt to enable the public—individuals with a sufficient interest in a particular decision notice or environmental review—to act in instances where the OEP decides that it is not going to. It is not an ability for every member of the public to take vexatious legal action on an environmental review. The amendments specifically state that this pertains to
“any person with sufficient interest” in the proceedings. We envisage that to be people who have been reasonably closely involved in proceedings and are concerned that action has not been taken on a decision notice or environmental review. They would then be able to take that up by applying for an environmental review outside the mechanism of the OEP.
At the moment, if the OEP decides that it does not want to take any action, there is very little recourse for those people who have been involved in a particular process to do anything further. The amendment seeks to enable a person with sufficient interest to make an application, in this instance, to the upper tribunal to intervene, and to protect that person from paying the costs of any relevant proceedings, where they are a party with sufficient interest that feels that the processes through the OEP have not sufficiently enabled their rights and their considerations to be properly looked at.
Amendment 123 establishes:
“Where the OEP has given a decision notice to a public authority but has not applied for an environmental review, any person with sufficient interest may apply for an environmental review.”
Amendment 124 sets out the way in which that person may intervene and the protection that that person may have in terms of costs when they seek to intervene. That does not mean that they automatically get their way; it is a method by which the general public can be rather more assured that their views are not completely buried in these sorts of processes and that there is a route to redress outside the official structures, if they consider that the official structures have not undertaken what they might reasonably have expected to happen in the environmental review.
I thank the hon. Member for the amendments. The Government agree that it is important for the general public and interested parties to be able to challenge alleged breaches of environmental law, which is why we are ensuring that anybody can make a complaint to the OEP, free of charge, about a public authority’s alleged failure to comply with environmental law, which is in addition to existing rights to bring judicial review.
The environmental review is an innovative, bespoke litigation procedure and the final stage in the OEP’s enforcement process. The OEP will only bring environmental review in serious cases, having first conducted a number of thorough pre-litigation steps with the aim of resolving the breach. We do not consider it appropriate for another party to be able to take over at this point, as proposed in amendment 123. The OEP’s decision not to apply for an environmental review will be a considered one and could be taken for a number of reasons.
First, following the decision notice, the public authority may have acknowledged the breach and be taking remedial measures to rectify it, or the response to the decision notice could demonstrate to the OEP’s satisfaction that there is in fact no breach. Secondly, any decision not to bring legal action will be informed by the OEP’s specialist expertise and the information it has gathered in its investigation. Furthermore, the OEP’s enforcement framework has been designed in order to motivate public authorities to engage in constructive dialogue and problem solving. If there is a threat of legal action by a third party, regardless of actions taken to resolve issues during the investigation stage, that undermines much of the incentive for public authorities to work with the OEP.
On amendment 124, we recognise that people will have an interest in cases brought to environmental review by the OEP and may wish to intervene in such cases. However, we also recognise that that might not always be appropriate. There is a well-established procedure for determining who may intervene in legal proceedings. As such, it would be inappropriate to override that procedure by specifying such matters in the Bill. Nevertheless, I assure the hon. Member that we have already started to examine the existing procedural rules to see where changes may be necessary. I therefore ask him to withdraw amendments 123 and 124.
We do not intend to press this to a Division if we are satisfied that the public are fully protected in terms of how this works overall. The Minister has to some extent, by pointing out the mechanism for judicial review, started to build ground for the possibility that there are other mechanisms for public intervention. I welcome the fact that he indicated that there should be public involvement, if necessary, beyond the involvement of public bodies where appropriate, but I do not think he has made the case—in terms of a specifically environmental review, which, as he said, is a relatively new process—that the public’s ability under judicial review to intervene can be wholly applied to environmental review in the way that the Bill might intend.
Our amendments try to tie the public—a “person with sufficient interest”—to that environmental review specifically. I am afraid, therefore, that we need to put on record that this is an important right that the public should have and that it is not fully recognised in the Bill. We would like to see it recognised, and therefore I think we ought to apply for a Division on amendment 123 this afternoon.
Amendment proposed: 209, in clause 35, page 21, line 1, leave out paragraph (b). —(Leo Docherty.)
The OEP may only bring an environmental review after it has given a decision notice. This amendment removes the OEP’s power to bring an environmental review in relation to conduct occurring after a decision notice is given, which is similar or related to the conduct described in the decision notice.
“(2A) The purpose of an environmental review is to promote the integrity of environmental law and the achievement of environmental improvement in accordance with the law.
(2B) When considering an environmental review, the Tribunal may review any finding of fact on which the decision in question was based and, where relevant, whether the achievement of environmental improvement required, had been achieved.”.
This amendment clarifies the purpose of environmental review and provides that the Tribunal may review findings of fact during a review.
The amendment ensures that OEP notices will be treated as authoritative in any related environmental review, helping to ensure that the notices play a meaningful role in any subsequent enforcement action.
Amendments 119 and 120 are connected. They seek to provide in the Bill a definition of the purpose of an environmental review. We think that will strengthen environmental reviews as set out in the Bill. Amendment 119 sets out that their purpose is to
“promote the integrity of environmental law and the achievement of environmental improvement in accordance with the law.”
That is a fairly clear definition. It would allow a tribunal—in this case, the High Court—to review any findings of fact on which the decision in question is based, and indeed whether environmental improvement, as defined in the first part of the amendment, has actually been achieved. This would give powerful additional clarity about the environmental review, and we offer the amendment to the Government as a good addition to the Bill.
If the definition in amendment 119 is put in place, amendment 120 would enable the upper tribunal to treat notices issued by the OEP as authoritative in respect of any relevant issues. The link between the definition of environmental law, what the tribunal may do so far as facts are concerned and how those notices should be treated by the OEP would be a substantial addition to the Bill, ensuring that environmental reviews are as strong as they can be. I anticipate that the Minister might not think that such a great idea, but I offer it, for what it is worth, and hope that even if the Minister does not decide on this occasion that it should go straight into the Bill, he may go away and reflect on it and consider whether, during the passage of the Bill, something like this may be an appropriate strengthening of it, making it more robust as it makes its way out into the world following our deliberations.
I thank the hon. Member for his contribution on this matter. First, I reassure him that the court may already review relevant facts or evidence in coming to its judgments. I fully expect that the court will give the OEP’s decision notices appropriate weight as part of any environmental review, and that its judgments will contribute to the integrity of environmental law.
While I support the hon. Member’s desire to see environmental improvements delivered by the Bill, I am concerned that amendment 119 would potentially blur the well established separation of powers between Government and the courts. We all support the objective of achieving environmental improvement, but that is a policy objective for the Government to deliver. It would be highly unusual and inappropriate to give the courts responsibility for delivering a policy objective other than the service of justice. Moreover, this could also lead to secondary legal challenges examining whether the environmental review had achieved its supposed purpose.
Both amendments also risk tilting the balance of the court’s judgments in such a way as to favour the OEP’s case in environmental reviews. It would be unheard of to impinge on the impartial role of the court in carefully balancing all the evidence before it and reaching a fair and reasonable judgment. That could be prejudicial to the public authority concerned. Clearly, therefore, it is better to allow the court to continue to operate in a fair and balanced way, giving all parties confidence that they will be given a fair hearing, which is necessary to ensure that judgments are objective, impartial and can widely and positively influence environmental case law. I respectfully ask the hon. Gentleman to withdraw the amendments.
I did not expect the Government to be over-enthusiastic about this idea, and indeed, they have demonstrated that they are not. They have indicated that they have concerns about the difficulties that this particular formulation might cause, but, as I have said on previous occasions, I think that the principle is probably about right, and it would be helpful for the Bill if the Government thought on it. I beg to ask leave to withdraw the amendment.
With this it will be convenient to discuss the following:
“(8A) Where the Upper Tribunal makes a statement of non-compliance, it may issue ongoing financial penalties where it deems these to be necessary.”
The amendment would clarify that the Tribunal has the power to issues fines in instances of non-compliance.
Amendment 184, in clause 35, page 21, line 28, at end insert—
“(8A) Where the Upper Tribunal makes a statement of non-compliance it may impose a remediation requirement to take such steps as it may specify, within such period as it may specify, to secure that the net environmental position is restored to what it would have been if the offence had not been committed.”
The amendment would give the Tribunal the power to require a public authority to make amends for environmental harm resulting from a breach of the law.
I hope that, after that plethora of votes, everyone knows where we have got to. I think and hope that I know, but we shall see whether I am speaking to the right amendment.
Amendment 121 would give the OEP’s relationship with the upper tribunal—in this case, the court—a greater amount of leeway over a remedy that could be granted by the court on judicial review. Clause 35(8) states that the upper tribunal—here it is the High Court—
“may grant any remedy that could be granted by the court on a judicial review other than damages, but only if satisfied that granting the remedy would not—
(a) be likely to cause substantial hardship”, and so on. The amendment would delete the second part of subsection (8), thereby enabling a remedy to be granted without that caveat on its operation. We think that would strengthen the proceedings. Similarly, amendment 80 would allow the upper tribunal to issue financial penalties where it thinks fit.
Amendment 184—this is important; I am particularly concerned about it—would allow remediation requirements, so that the net environmental position would be returned to where it was before the action took place. One important principle regarding environmental damage and various other activities is that such damage should not go unnoticed or be left by the wayside, and those who cause it should be required to put things back to their original state. If bodies undertake planning activity that causes environmental disturbance, they should be required to put something else in place or remedy the damage. The amendment would allow remediation requirements to be introduced, so that the offending body would be required to put the issue right. That important principle ought to be in the Bill.
Does my hon. Friend agree that although financial penalties are important, remediation is even more important? For instance, where trees with tree preservation orders have been cut down, contractors have decided to take the fine on the chin, while not doing anything about the trees. The remediation aspect is so important.
Once again my hon. Friend hits the nail on the head. In many cases a contractor, or someone who has decided to undertake an action, may make a cold calculation about what they can achieve by cutting down a row of trees, or sawing branches off a tree, or whatever. Although they might face financial consequences, the net result could be to their advantage, so they will take that on the chin. However, the tree is gone, and the other things have not been remedied. The idea of having a remediation clause that a person who is thinking of doing something must take into account before they do it is an important step forward. As my hon. Friend says, that remediation requirement should be in the Bill and a power of the upper tribunal or the court.
I thank the hon. Gentleman for his contribution. We support his intention of ensuring that the court has powers to grant appropriate remedies in environmental reviews.
With regard to amendment 121, it is also important to recognise that in some cases the granting of remedies by the court could substantially affect the rights of innocent third parties who have acted in good faith in reliance on public authority decisions. We have therefore sought to protect the rights of such third parties from the most significant implications of unlawful decision making. To be clear, that does not prevent the court from granting remedies in any circumstances where a third party is even slightly affected. In order to be able to grant a remedy, the court would need to be satisfied that this would not be likely to cause substantial hardship or prejudice.
It is entirely necessary to protect third parties from the increased risk of granting remedies long after a decision has been taken. It is not novel to protect such rights in legislation, but the current drafting is a reasonable and proportionate approach to that issue. Subject to those safeguards, through environmental review, the court will have access to judicial review remedies, including mandatory and quashing orders that can ensure that compliance with environmental law is achieved.
In the highly unlikely event that a public authority failed to comply with a court order, the OEP would be able to bring contempt of court proceedings, which could lead to a range of sanctions being imposed by the court, potentially including fines or even imprisonment. The availability of those remedies and the strict requirement for compliance with court orders entirely dispense with the need for an inferior system of fines in a domestic context, as proposed in amendment 180. Fines form part of the EU infraction framework, but only because the Court of Justice of the European Union is unable to compel the member state into a specific course of action through a court order. The provision for remedies through the OEP’s environmental review enforcement procedure clearly outlines how this Government are committed to enhancing environmental protections now that we have left the EU.
Turning to amendment 184, I reassure the hon. Gentleman again that the court has the appropriate powers to make court orders where a public authority has breached environmental law. Amendment 184 would go further by giving the court powers to specify the steps necessary to make amends for any environmental harm resulting from their failure to comply with the law. Given the separation of powers, it is for the courts to determine legal proceedings and for the Government and public authorities to implement law and policy. That is why we have provided that, where the court has determined that a public authority has failed to comply with environmental law, that authority must publish a statement setting out the steps that it intends to take. I therefore ask the hon. Member not to press amendments 121, 180 and 184.
I take the Minister’s points on amendments 121 and 180, and we do not intend to proceed further with those. However, on amendment 184 the Minister has essentially repeated the limitations that are already on the courts with respect to public authorities and remediation—that is, that an authority would be expected to say what it is going to do, but that does not mean the authority has to do it. We think the inclusion of this particular arrangement on remediation, although it would be an extension of the court’s responsibilities, would nevertheless be a substantial environmental gain by ensuring that the process was fully followed through.
I am sorry that the Government have been unable to accept either the spirit or the actuality of amendment 184. Although it is not the lead amendment in this group, it does relate to this clause, so a Division would be appropriate within the purview of this particular clause. That is what we would like to do, Sir George, if that is the order that we can follow. I beg to ask leave to withdraw amendment 121.
Amendment proposed: 184, in clause 35, page 21, line 28, at end insert—
‘(8A) Where the Upper Tribunal makes a statement of non-compliance it may impose a remediation requirement to take such steps as it may specify, within such period as it may specify, to secure that the net environmental position is restored to what it would have been if the offence had not been committed.’—
The amendment would give the Tribunal the power to require a public authority to make amends for environmental harm resulting from a breach of the law.
Amendments made: 214, in clause 35, page 21, line 29, leave out “Upper Tribunal” and insert “court”.
See Amendment 207.
Amendment 215, in clause 35, page 21, line 31, leave out from “review” to end of line 32.
This amendment is consequential on Amendment 214. It omits words that are no longer required relating to remedies granted by the court.