Levelling-up and Regeneration Bill

Debate between Baroness McIntosh of Pickering and Lord Anderson of Ipswich

Report stage
Wednesday 13th September 2023 Lords Chamber

[Baroness McIntosh of Pickering (Con)]

My Lords, I follow the noble Baroness in backing British farming, particularly today with the NFU hospitality earlier. On that note, farmers feel beleaguered, and I think that it is fair to say that upland farmers, where most livestock production takes place, are suffering at this time for the reasons the noble Baroness said. I welcome the words from my noble friend the Minister in presenting the government amendments. She recognises that farmers need help, particularly with slurry treatment and storage, and looking to innovation and new technology, which is very welcome indeed. I think that less welcome will be the 4,000 additional farm inspections, which I am sure will spook a number of farmers.

I take this opportunity to support the noble Baroness, Lady Willis of Summertown, on her Amendment 247. I shall listen very carefully to what my noble friend the Minister says in her response. It is absolutely right—and goes to the heart of the earlier amendment on SUDS—that we look more to natural flood defences. I repeat my interest as co-chair of the All-Party Parliamentary Water Group, and also as a chair of the experts who looked into a report commissioned by CIWEM, the Chartered Institution of Water and Environmental Management. I do not know how else to paraphrase this other than to say that I hope that taking lumps out of waste and using it as a resource to add value is something that the Government will take up in due course. In this whole debate, that will contribute to reducing the impact of sewage.

On the Dutch case, I do not know if it is generally known that in Holland and parts of the UK, such as East Anglia, nitrates appear more naturally in the soil. So if you are contributing to the soil through either farming or sewage, you are increasing the levels of sewage, nutrients and pollution in certain parts of the country. That is something that the Government must be aware of; they should seek to try to limit the damage caused in those ways.

I must ask my noble friend the Minister and others who are committed, as we all are, to the target of 300,000 houses a year why developers are fixated on three-bedroom, four-bedroom and five-bedroom houses. Inevitably, they will contribute three, four or five times more to the wastewater going into our water courses—sometimes with pollution. Why are we not looking to reduce that and, particularly in rural areas, satisfy the need for one-bedroom or two-bedroom houses to help first-time buyers and young people into the property market, as well as older people, including former farmers wishing to come off the land and live in a village or market town?

I congratulate the noble Baroness, Lady Willis of Summertown, on arguing her amendment so persuasively. I also support my noble friend the Duke of Wellington, with whom I worked in the European Parliament in a previous life, who spoke so powerfully to his amendments —but, as he is aware, they are not the entire solution.

I urge the Government to take their amendments away and work at them in more detail. That is for one simple reason, about which I will end on a note of caution. My noble friend the Duke of Wellington referred to the OEP’s previous letters, but on 12 September it reported on and identified possible failings to comply with existing environmental law in relation to the regulatory oversight of untreated sewage discharges. That relates to Defra, the Environment Agency and Ofwat. I urge my noble friend the Minister to pause the government amendments and not, potentially, break existing environmental law in the way that the Government are preparing to do with the amendments she has put before us.

[Lord Anderson of Ipswich (CB)]

My Lords, the Minister said, in introducing the amendments, that they were carefully targeted and specific. With great respect to her, she could scarcely have chosen less appropriate adjectives for the Henry VIII clause that she seeks to introduce through Amendment 247YY. It is astonishingly broad, even by modern standards, as my noble and learned friend Lord Hope said. To give the House a flavour, it allows the Secretary of State to make any provision that they consider “appropriate” about the operation of any relevant enactment connected to the effects of nutrients and water that could affect a habitat’s site. Relevant enactments include all Acts of Parliament, including the future one we are debating today.

I will add a few other points on that clause to those made by my noble and learned friend. The Delegated Powers Committee, under the chairmanship of the noble Lord, Lord McLoughlin, has stated that such broad Henry VIII powers must always be fully justified—all the more so, one might think, when they are introduced at the last moment without any public consultation or parliamentary scrutiny. The committee also said that inadequate justification for such exceptionally wide powers had been given and recommended, in terms, that this clause should not form part of the Bill.

The position has not improved since then. The explainer circulated on Monday had nothing to say about the clause at all, although I and others raised it with Ministers last week. In fairness, the Minister said that she had written to the committee today, but the letter did not appear on its website when I checked 10 minutes ago, and I have no reason to suppose that the committee has changed its mind.

We cannot get into the habit of passing clauses such as this one without the clearest and most compelling reasons for them. This clause may have been conceived as a fail-safe in hastily prepared legislation, but its effect is to abdicate the influence of Parliament altogether over substantial and important areas of policy. Why would we sign up to that? The Minister undertook that these delegated powers would be used sparingly, and I do not doubt her good intentions. However, with respect to her, no such undertaking can have any value when the clause will expire not in this Parliament or the next, but in the Parliament after that, on 31 March 2030. I see every reason to follow the recommendation of the Delegated Powers Committee and to vote against the addition of the amendment.

There is a practical, as well as a constitutional, reason why I propose to vote against the amendment. If those who wish to oppose the main amendment—Amendment 247YYA—are successful, they will also need to exclude this clause because, if we do not, the powers that it grants will be quite broad enough to allow the Government simply to reintroduce the substantive measures by secondary legislation, or indeed to do anything else that they might wish to do in this general area, without Parliament having the power to amend it or, in practice, to block it. As I said, that is true not only of this Government but of the next Government and the one after that.

I was relieved to hear that my noble and learned friend Lord Hope will not press his probing amendment, because, as he said, it is inadequate to meet the problems identified by the Delegated Powers Committee. Like him, I am not content with Amendment 247YY and, if it is put to a Division, I will vote to exclude it.

Nationality and Borders Bill

Debate between Baroness McIntosh of Pickering and Lord Anderson of Ipswich

Lords Hansard - Part 1 & Report stage
Monday 28th February 2022 Lords Chamber

[Lord Anderson of Ipswich (CB)]

My Lords, the circumstances in which British citizenship may be removed were keenly debated in Committee. This group concerns a narrower issue: whether it should be possible to remove someone’s citizenship without giving them notice of it at the time and, if so, in what circumstances. Clause 9 struck me as so problematic that, in Committee, I tabled a stand part notice; that is echoed today by Amendment 20 in the name of the noble Baroness, Lady D’Souza. In Committee, I asked the Minister to take Clause 9 away and challenged her, if she could make the case for such an extraordinary power, to come back with a version of it that is far more limited in scope and subject to proper safeguards and accountability.

The Minister responded to that challenge as positively and wholeheartedly as I could have hoped. I pay tribute to her, to her fellow Minister, Tom Pursglove, to the Bill team and to those at the Home Office and in agencies with whom I have discussed these issues—and I pay no less tribute to the NGOs and individuals who have impressed on me the dangers of Clause 9. The result, after what I think I can fairly describe as very considerable movement on the part of the Government, is the first six amendments in this group, together with Amendment 85, which concerns commencement. They have been pulled into proper shape by the Office of the Parliamentary Counsel, and I hoped that they could be tabled last Monday as government amendments, with my support, but an extra day was needed to conclude our discussions, so they appear under my name. I am grateful to the noble Lord, Lord Macdonald of River Glaven, and the noble Baroness, Lady McIntosh of Pickering, for adding their support.

These amendments achieve four important things. The first is a far more restricted range of circumstances in which notice can be withheld. The original Clause 9 would have allowed the Secretary of State to withhold notice whenever that appeared to her to be in the public interest. Amendments 15 and 16 remove the subjective element and provide that notice may be withheld only if the Secretary of State does not have an address for service, or if she reasonably considers it necessary on one of the four exceptional grounds specified in Amendment 16.

Let me illustrate my understanding of how those exceptional grounds could arise in practice. A terrorist may be living in a safe house here, or more likely abroad, without realising that his whereabouts are known to the authorities. To require a notice of citizenship deprivation to be served on him at that address would reveal to him that he is the object of covert surveillance, contrary to the interests of national security: proposed new sub-paragraph (i). The same may be true of a participant in “organised or serious crime”—the phrase being taken from Section 1 of the Serious Crime Act 2015, which defines the remit of the National Crime Agency: proposed new sub-paragraph (ii). If intelligence as to location was supplied by a foreign liaison partner which does not wish its cover to be blown, notification at that address could jeopardise our intelligence relationship with that country: proposed new sub-paragraph (iv). The person in question might be, for example, with a dangerous armed group in a failed state. To require a courier to travel to such places to serve notice, at great personal risk, would be wrong: hence proposed new sub-paragraph (iii).

I do not believe that these grounds will be commonly advanced—it seems that, with a degree of ingenuity, workarounds have been found in the past—but neither, I suggest as a former independent reviewer of terrorism legislation, should they be dismissed as fanciful. It may be relevant that the laws of two of our closest allies are, if anything, more broadly drawn than this amendment. The New Zealand Citizenship Act 1977 allows for notice of deprivation to be dispensed with if it would be for any reason “not practicable” to serve it on the subject. The Australian Act of 2020 allows the Minister to determine that notice should not be given if it could prejudice the security, defence or international relations of Australia or Australian law enforcement operations.

The second feature of these amendments is to introduce powerful safeguards for conducive grounds deprivations that were entirely absent from the original Clause 9. In New Zealand, they have judicial scrutiny of these decisions. In Australia, they have regular ministerial review. Elements of both those safeguards are contained in the new Schedule 4A, which is set out in Amendment 14 and referred to in Amendments 17 and 19.

The judicial safeguard is in paragraph 1 of the schedule. If the Secretary of State wishes to withhold notice, she must apply to a superior court of record—the Special Immigration Appeals Commission—in advance or within seven days. SIAC will examine her reasons and decide, applying judicial review principles, whether her assessment is obviously flawed. That is the same test that is applied to the making of terrorism prevention and investigation orders under the TPIM Act 2011. SIAC will no doubt develop similar rules to deal with it, which might, in an appropriate case, provide for the appointment of a special advocate. If she does not succeed on her first attempt or on a subsequent application, which must be based on material change of circumstances or further evidence, the Secretary of State must either give notice in the normal way or revoke the deprivation order altogether.

The review safeguard is in paragraph 2 of the schedule. The Secretary of State must consider, three times a year for two years, whether the reasons for non-notification remain valid. If, after the sixth review, she still resists notification, she must make a further application to SIAC, which will, once again, give independent scrutiny to her decision.

The twin requirements of judicial approval and regular review will place a significant burden on the Secretary of State in any case where she wishes to exercise this power. I make no apology for that. Under the Immigration Rules, as they stood between 2018 and 2021, it was easy—far too easy—not to give notice but simply to record it on the file. That path was taken in no fewer than 29 of the 45 conducive grounds deprivations, mostly related to national security activity abroad, that were made in 2019, 2020 and 2021. These amendments not only require non-notification to be a last resort on paper; they make it hard work in practice. They should ensure that, in its own interests, the Home Office will take this exceptional course only when there really is no possible alternative.

The third feature of these amendments relates to appeals. Of course, a subject cannot appeal against a notice of deprivation until he has become aware of it. But Amendment 18 provides that time for appeal will begin to run only once notice has been given. It will not, therefore, be necessary to rely on the discretion of the court to extend time for appeal in cases where deprivation has not been notified at the time.

The fourth and final feature is in the proposed new subsections 5(c) and (d) inserted by Amendment 18. Any person whose citizenship was removed without notice must be informed of that fact, with reasons and information about appeal rights, as soon as they make themselves known to the Home Office, whether within the two-year review period or thereafter; for example, this might be by seeking consular assistance or a fresh passport.

Amendment 18 has another significant and, I would suggest, highly beneficial effect. The point has been well made by other noble Lords that upstanding citizens of this country, notably dual citizens, may be anxious about the removal of their citizenship without their knowledge. Amendment 18 provides such people with a means of reassurance. They have only to contact the Home Office to be told whether this has happened or whether, as will almost always be the case, it has not.

In Committee, the noble Lord, Lord Blunkett, challenged the House to

“find a way forward on Report that takes away the genuine fear from millions of people who believe—erroneously, but they believe it—that Clause 9 as drafted and the implementation of further measures will put them and their families at risk”.—[Official Report, 27/1/2022; col. 518.]

These amendments rise to that challenge. They should ensure that non-notification is confined to those rare cases where it is truly necessary, and they are subject to strong safeguards, including regular review, judicial scrutiny and a right to be informed on request.

I come finally to subsections (5) to (7) to Clause 9, which seek to limit the effect of the D4 case by providing that an unlawful failure to notify a pre-commencement deprivation order should not affect the validity of that order. I will listen carefully to my noble friend Lady D’Souza develop her manuscript amendment to remove those clauses, but in the meantime, to assist our deliberations, I ask the Minister to give two assurances relevant to that amendment. First, will she confirm that anyone subject to a pre-commencement deprivation order will be informed of that fact if they contact the Home Office, by analogy with proposed new subsections (5C) and (5D), as inserted by Amendment 17? They would then be in a position to proceed with any substantive appeal. Secondly, will she confirm, by analogy with Amendment 18, that the Home Office will not suggest that any of these people are out of time for appeal as a consequence of the interval between the decision to remove their citizenship and the giving of notice?

If my amendments are accepted, and those assurances given, I believe that we will have played our part as a revising Chamber and achieved a broadly acceptable balance. Opinions on citizenship removal will, of course, continue to differ, but the aggravating factor of removal without notice will be strictly confined and properly safeguarded for the future, as it was not in the Immigration Rules as they stood prior to the D4 judgment of last year, and as it was not under Clause 9 as it was passed by the Commons. I beg to move my amendment and, if necessary, I will test the opinion of the House.

[Baroness McIntosh of Pickering (Con)]

My Lords, I am very grateful to the Minister for her support in drafting these amendments, and I hope that she will give an assurance that the Government do, indeed, support these amendments. I thank the noble Lord, Lord Anderson of Ipswich, for addressing many of the concerns that I raised in Committee, particularly those expressed to me by the Law Society of Scotland, which was extremely dissatisfied that, in the original Clause 9, the Government had not fully justified the removal of citizenship without notifying the affected person. It asked that this clause be reconsidered, and I am grateful to the noble Lord for doing so.

Equally, in Committee, I raised the concerns expressed to me by the European Network on Statelessness in its briefing. It was very concerned that Clause 9 as drafted would

“have severe impacts on the rule of law and on a person’s fundamental rights”,

and that, as drafted, Clause 9

“disregards many of the UK’s international obligations, including the prohibition of arbitrary deprivation of nationality, the obligation to avoid statelessness, and the right to a fair hearing.”

In its view, the UK Government

“has not provided any justification as to why such a restriction on fundamental rights is needed.”

I pay tribute to the Minister and the noble Lord, Lord Anderson of Ipswich; many of my concerns have been addressed. I support the amendments introduced by the noble Lord, Lord Anderson, and support the reasons that he has given. The restrictive range of circumstances has been greatly reduced in which a citizen’s rights could be taken away. I support the powerful safeguards he set out as to why a citizen could be deprived of their citizenship, the rights of appeal, the provision that a citizen must be informed that their citizenship is going to be removed and the reassurance that he set out that could be given by condition C at that time. I support the amendments.

Environment Bill

Debate between Baroness McIntosh of Pickering and Lord Anderson of Ipswich

Consideration of Commons amendments
Tuesday 26th October 2021 Lords Chamber

[Lord Anderson of Ipswich (CB)]

My Lords, in logical sequence, I will speak to Motion G1 and Amendment 33B, which concerns the conditions that must be satisfied before the High Court can grant a remedy to the OEP on an application for environmental review. Your Lordships will recall that as the Bill stands, in notable contrast to the normal position under judicial review, no remedy whatever may be granted on environmental review unless the court is satisfied that there is not likely to be any substantial prejudice or detriment to a developer, landowner or any other third party, and that there will be no detriment to good administration. So, the mechanism that appears to allow public authorities to be held to account for the non-performance of their environmental duties will in practice be ineffective in all cases where there are serious conflicting interests.

We accept that the interests of developers and landowners can and should be placed in the balance when courts are making decisions about remedies, but it is perverse and without precedent to suggest that those interests should automatically outweigh all other factors, including the public interest in a clean environment and having the law enforced. In any judicial system worth the name, the court must at least be able to have regard to those factors, which is our modest and limited objective.

We bent over backwards in Amendment 33 to accommodate the Government’s concerns, to the point where my noble and learned friend Lord Thomas of Cwmgiedd, who signed the original amendment, said:

“I cannot see what greater protection any Government could legitimately seek.”—[Official Report, 8/9/21; col. 897.]


We have risen to my noble and learned friend’s challenge and, in response to the other place, imprecise though its comments were, we have been more accommodating still.

There are two additional reasons Amendment 33B should commend itself to the House. First, when listing the factors to which the court must have regard when deciding whether to grant a remedy, we have largely borrowed the list of factors used by the Government themselves for comparable purposes in Clause 1(8) of the Judicial Review and Courts Bill, which has its Second Reading in the other place today. Those factors specifically include the interests and expectations of developers, landowners and others who have relied—no doubt in good faith—on failures by a public authority to comply with environmental law.

Secondly, my noble friend Lord Krebs has conceded, in his linked Amendment 31C, that the Secretary of State may issue guidance to the OEP on the matters listed in Clause 22(6)(c): that is, the exercise of

“its enforcement functions in a way that respects the integrity of other statutory regimes (including statutory provision for appeals).”

Even if my noble friend’s amendment is accepted—and I hope it is—the Government will have every opportunity to ensure that environmental review, which we accept is designed to deal with systemic problems, is not used to circumvent the short statutory deadlines that apply in planning cases. That fundamentally changes the landscape in which my amendment features.

I am acutely aware that we have to tread delicately at this stage of a Bill, but make no apology for stressing the particular importance of this amendment. Arguments about the precise ambit of the environmental duties to be imposed on public authorities will be to little effect if those duties cannot be enforced in court in the normal way at the request of the body established for the purpose. If this in many ways admirable Bill cannot be made to achieve this, it will have a fundamental weakness at its core. For that reason, and unless the Minister can offer the necessary assurance, which I understand from our continuing dialogue may be unlikely at this stage, I propose to test the opinion of the House on Amendment 33B.

[Baroness McIntosh of Pickering (Con)]

My Lords, I will pose a couple of brief questions to my noble friend the Minister. He will recall that I supported the original amendment on the independence of the OEP at earlier stages. I cannot think of any other body to which a department has issued guidance that is meant to be overseeing that department. To be honest, I preferred the original Amendment 31 and am struggling entirely to understand the contents of the new Amendment 31C.

Environment Bill

Debate between Baroness McIntosh of Pickering and Lord Anderson of Ipswich

Committee stage
Wednesday 30th June 2021 Lords Chamber

[Lord Anderson of Ipswich (CB)]

My Lords, I agree with the noble Baroness, whom it is a pleasure to follow, that the risk of penalty fines concentrates the mind wonderfully. When I used to defend Defra from the attentions of the European Commission in urban waste-water cases, I suspect the prospect was quite useful in concentrating the mind of the Treasury when money was requested for the Thames super-sewer and other mitigations. The Minister will say that no fining mechanism is necessary when the OEP has at its disposal a sufficiently intimidating set of judicially enforceable remedies. In the abstract, he may have a point, but, when looking at the Bill, as the noble Lord, Lord Duncan of Springbank, said at Second Reading, it is important not to confuse a full set of teeth with a flashy set of dentures. My Amendments 105 to 108 seek, in particular, to equip environmental review, the only route generally available to the OEP, not with dentures but with teeth.

The crucial amendment, to which the noble Baroness has already referred, is Amendment 107. In any case likely to prove contentious, it will be worthwhile for the OEP to pursue environmental review only if strong and enforceable remedies—notably, the power to quash unlawful decisions—are available at the end of the road. Clause 37(8), which is without precedent in any Act of Parliament, removes the court’s power to grant such remedies, no matter how much or little time may have elapsed, and no matter how serious the damage to the environment or public health, unless the court can satisfy itself that the grant of a remedy would not be likely to cause substantial hardship to, or substantially prejudice the rights of, any person. This is, though disguised in the drafting, a rebuttable presumption against the grant of any remedy at all.

There is a yet further hurdle: the court would have to be satisfied also, before granting a remedy, that a remedy would not be “detrimental to good administration”—although how good administration could be founded on policies and decisions that are unlawful is certainly an interesting conundrum. Take the example of an air quality case: just the sort of systemic issue of national importance that is identified in Clause 22(7) as particularly suitable for the OEP. Let us say that the court hearing an environmental review finds that a public authority has failed to produce legally compliant air quality plans and, to ensure that the law is enforced, wishes to require it to do so. Clause 37(8) would stop it from doing so unless the court was satisfied that no one would be likely to suffer substantial hardship or prejudice as a result. The evidence of one taxi driver who had recently sunk his savings in a non-compliant vehicle would be not only relevant but determinative of the issue, no matter serious the breach of law and no matter how many lives might be saved by a compliant plan. Indeed, even if there were no such evidence, the court could still not grant a remedy without, in effect, proving a negative: that there is nobody out there who could suffer the requisite substantial hardship or prejudice.

Similarly, an unlawful failure to designate a nitrate-vulnerable zone could not be corrected unless the court could be sure that no affected landowner would meet those thresholds. An unlawful permit for an oil refinery would have to stand if the owner had invested on the strength of it, whether in good faith or otherwise. A future judgment that new gas boilers are incompatible with statutory net-zero obligations would be unenforceable too. Irrespective of the benefits, there always would be people with something substantial to lose. In short, the more significant the issue and its environmental impact, and the more it is capable of impacting on private or even administrative interests, the more likely it is that the grant of any remedy will be automatically excluded by this clause.

Of course there will be cases, including some cases decided long after the event, in which a private interest is so strong, and the environmental interest so relatively weak, that a court would be justified in refusing a remedy in respect of unlawful conduct. That is precisely why the grant of remedies by courts of judicial review is, and always has been, discretionary and flexible. Amendment 107 would do no more than replicate that orthodox and unobjectionable position in the context of environmental review. It does not even require the normal remedy of damages to be available. Clause 37(8) places private and bureaucratic interests in the perpetuation of unlawful decisions on one side of the balance, and decrees that even the heaviest public interests will never outweigh them. The twin attributes of justice are her scales and her sword; Clause 37(8) would remove them both. All we ask if that she should be allowed to keep them, so that public authorities can be kept to their legal obligations in this most vital area.

Amendment 108 would give the OEP an alternative to environmental review by opening up a wider range of cases in which the OEP could pursue the established route of judicial review. Clause 38(1) uniquely handicaps the OEP as a claimant in judicial review by requiring it to surmount two extra hurdles of seriousness and urgency—nobody else faces those. By removing at least the second of those hurdles, which was only inserted in the Commons, we would go some way towards redressing the OEP’s disadvantage and putting it on the same footing as any other interested group or individual.

Amendments 105 and 106 address further points on environmental review. The point of 105 is to reduce the scope for procedural game-playing by lawyers. It is the nature of things that unlawful practices may spread, or be repeated, during the course of the OEP investigation that is a precondition for the commencement of environmental review. It is surely sensible that the scope of any environmental review should not be frozen at the time, months or even years earlier, when the investigation began. If later conduct raises the same issues, there should be no obstacle to putting it before the court. I hope the Minister will agree with that, and also that Clause 37(2) is too narrowly drafted for this subject to be adequately dealt with by assurances from the Dispatch Box.

Amendment 106 focuses on the statement of non-compliance, a concept introduced to the law by Clause 37. As the department has accepted in its FAQs, published on Monday, such statements may have reputational or political effects but are not in themselves a legal remedy. So they are not a prize to which the OEP is likely to feel justified in devoting its limited resources. This amendment would remove the most obvious statement of their legal powerlessness—that they do not affect the validity of the conduct in respect of which they are given—but would not, I freely accept, be a substitute for the remedies whose full application would be restored by Amendment 107.

Finally, and in response to a concern I raised at Second Reading and in person, the Minister has been good enough to write in an all-Peers letter that it is the Government’s view that OEP complaints and enforcement functions will not affect the rights of other persons to bring legal challenges against public authorities by way of judicial review. It would be the final irony if the imperfect mechanisms of environmental review were to be advanced in the courts by public authorities as a reason for withholding access to what remains, at least for now, the gold standard of judicial review. I accept that such decisions are ultimately for the courts, but the Government’s view is significant and I would be grateful if the Minister could repeat his assurance from the Dispatch Box so that it appears in the official record.

[Baroness McIntosh of Pickering (Con)]

I am delighted to follow the noble Lord. I support the amendments in this group. I join my noble friend the Minister in congratulating my noble friend Lady Bloomfield on her birthday; I am sure there is nowhere she would rather be celebrating her birthday than with us this afternoon. Her support on the Bill is greatly appreciated.

My starting point is what my noble friend has said on a number of occasions: that we are seeking to achieve a regime whereby we replicate, as closely and as effectively as possible, the regime to which we signed up with the European Union. I go back to Britain in the 1980s, when I was working as an adviser; an A-grade woman, and a woman administrator in the Conservative group in the European Parliament, was quite a thing in those days. Noble Lords may recall—the noble Duke, the Duke of Wellington, recalls only too well—that the United Kingdom had a terrible reputation as the dirty man of Europe, with the dirtiest waters, some of the dirtiest rivers and some of the dirtiest beaches. Many maintain that change came not just by signing up to high-reaching directives, such as the EU water directive—I pay tribute to the Secretaries of State for the Environment at the time—but also the massive investments that water companies made over successive years and, obviously, the sterling efforts of the noble Lord, Lord Anderson of Ipswich, who made sure that he held the water companies’ feet to the fire.

I am concerned that there will be no real teeth. I hate using that word because I went to the dentist recently and it brings back too many memories of that, but I think it is a good word to use. I believe that one reason why the European regime has been so successful in holding water companies, chemical companies and agricultural processes to the fire is because it had very real sanctions. I therefore pay tribute to the noble Baroness, Lady Jones of Moulsecoomb, and the noble Lord, Lord Anderson of Ipswich, for their amendments. Mine, as the noble Baroness said, goes a little further. It says:

“In the event of a severe breach of environmental law, financial penalties may be imposed.”


This echoes a lot of the arguments put forward by the noble Lord, Lord Anderson of Ipswich.

The offending subsections of Clause 37 include subsection (7), which states:

“A statement of non-compliance does not affect the validity of the conduct in respect of which it is given.”


They also include subsection (8) in particular, which goes further:

“Where the court makes a statement of non-compliance it may grant any remedy that could be granted by it on a judicial review other than damages, but only if satisfied that granting the remedy would not … be likely to cause substantial hardship to, or substantially prejudice the rights of, any person other than the authority, or … be detrimental to good administration.”


My noble friend the Minister has to put our minds at rest this afternoon and show that it should not really be just the courts that are left to impose the penalty. If the OEP is to be worth its weight in gold, which I hope it will be, it has to have the power to implement the decisions that have to be taken when holding public bodies to account—it is extending to public authorities for the first time—and would mirror the powers that currently exist under the European Commission, which is the body that we are told the OEP is meant to replicate in fulfilling our environmental sanctions post Brexit.

I am grateful to the Bar Council for its help in preparing my amendment. As I have said before:

“The requirement that the breach be severe to justify a financial penalty is noted. It is assumed that this is to ensure that a financial penalty be the exception rather than the rule”.


So, it should not just be a minor infraction; it should be a major infraction and a severe breach. Also, this is

“in the context that the OEP’s power to apply for an environmental review is already on the condition that it considers the authority’s failure to comply to be serious. To that end, it might be less open for debate as to whether it is severe or serious if the court’s discretion were wider, and therefore based upon all the circumstances of the case, but to be exercised where those circumstances are exceptional.”—[Official Report, 28/6/21; cols. 562-63.]

In making an argument to reject Amendment 107A, my noble friend has to give us the alternative that there will be very real and immediate powers. As I am sure the noble Lord, Lord Anderson, will say, if the OEP were to impose a penalty, it would be more or less instantaneous. Going to court means that there will inevitably be a delay, so the spillage and the damage could take more effect than if we had the OEP imposing the penalty, which is my preferred route. I hope that I will get the support of the House for Amendment 107A.