(b) the urgency condition is met.”
This amendment provides that the OEP may only bring a judicial review under clause 36, rather than proceeding by way of information notice, decision notice and environmental review, in urgent cases. Amendments 218 and 219 define what is meant by urgent.
We have created the OEP’s bespoke core enforcement mechanism of notices and environmental review to identify and resolve breaches of environmental law while only resorting to litigation in court as a last resort. Clause 36 ensures that the OEP can apply directly for judicial review, but that power has always been intended to supplement the OEP’s core enforcement mechanism. It is expected that judicial review should be used by the OEP in limited and exceptional circumstances where it is necessary to do so to prevent or mitigate serious damage to the natural environment or human health where the OEP cannot do so through its core enforcement mechanism.
Government amendments 217, 218 and 219 clarify the policy intention as to how and when the OEP should apply directly for a judicial review. Amendment 217 simply clarifies that the OEP should apply for judicial review only in limited circumstances, now referred to as the urgency condition. Amendments 218 and 219 go on to define when and how the urgency condition may be met.
The urgency condition is framed in terms of necessity. To meet the condition, it must be necessary for the OEP to proceed according to this route—rather than its normal enforcement procedures—to prevent or mitigate serious damage to the natural environment or human health. The clause is also restructured so that this condition is an objective, rather than subjective, test that must be passed in order for the OEP to bring such proceedings. This is intended to bring greater clarity to the test. Amendments 217 to 219 will therefore improve clause 36 by clarifying the process for the OEP to apply for judicial review as intended.
The Opposition’s opinion is that these amendments, which are connected, as the Minister has explained, constitute a serious undermining of the powers of the OEP and its ability to judge for itself what it wants to do, particularly with regard to judicial review. Clause 36(1) states:
“The OEP may apply for judicial review, or a statutory review, in relation to conduct of a public authority (whether or not it has given an information notice or a decision notice to the authority in respect of that conduct) if the OEP considers that the conduct constitutes a serious failure to comply with environmental law.”
Therefore, there is already the question of “serious failure” in the clause. Now, the Government are adding to that by putting this urgency requirement on the end, so there has to be not just a serious failure, but an urgent and serious failure. This clearly puts obstacles in the way of the ability of the OEP to work for itself, in relation to how judicial review is undertaken. It puts in place a number of outside obstacles to that process.
Without going over the case at great length, we think that this is part of that suite of amendments that seek to put a corset around the OEP in terms of what it may or may not do, and in effect hug it closer to Government as a result. We do not think that is conducive to what we have always considered to be the imperative of the independence of the OEP, and therefore we will seek once again to defend the Bill as it stands—against the Government’s wish to dilute further what is in it—particularly in relation to the powers of the OEP that were set out when the Bill was first introduced.
We do not want to support amendment 217, but we appreciate that the other amendments are consequential to it and that therefore if amendment 217 does go through, the others follow. Not wishing to extend proceedings greatly this afternoon, I will just say that is where our position stands.
Amendments made: 218, in clause 36, page 22, line 12, leave out from beginning to “(rather” in line 13 and insert
“The urgency condition is that making an application under subsection (1)”.
This amendment, together with Amendment 219, provides that a case is urgent only if it is necessary to bring a judicial review, rather than proceeding by way of information notice, decision notice and environmental review, to prevent or mitigate serious damage to the natural environment or to human health.
Amendment 219, in clause 36, page 22, line 14, after “35)” insert “is necessary”.
See Amendment 218.
Amendment 220, in clause 36, page 22, line 29, leave out subsection (6) and insert—
“(6) Subsection (6A) applies to proceedings (including any appeal) that—
(a) are in respect of an application for judicial review or a statutory review, and
(b) relate to an alleged failure by a public authority to comply with environmental law (however the allegation is framed in those proceedings).
(6A) If the OEP considers that the alleged failure, if it occurred, would be serious, it may apply to intervene in the proceedings (whether it considers that the public authority has, or has not, failed to comply with environmental law).”—
This amendment provides that the OEP may apply to intervene in a judicial or statutory review relating to an alleged failure by a public authority to comply with environmental law only if it considers that the failure, if it occurred, would be serious. If that test is satisfied, it may apply to intervene whether or not it considers that the authority has in fact failed to comply with environmental law.