Civil Procedure (Amendment) Rules 2017

Debate between Baroness Parminter and Lord Teverson

Wednesday 13th September 2017 Lords Chamber

[Baroness Parminter (LD)]

My Lords, I thank the noble Lord, Lord Marks, for bringing forward this regret Motion and exemplifying what this House does so well—standing up for the democratic rights of citizens to challenge authority and, as in this case, do so in the face of what is clearly an attempt by the Government to price people out of the opportunity to get environmental justice.

As the noble Baroness, Lady Jones, said, we are at a time when there is mounting pressure on our precious environment and, frankly, when better lives in a better future for all of us can be achieved only by respecting the value and constraints of the natural environment. Like the noble Baroness, Lady Young, as a former chief executive of the Campaign to Protect Rural England, I saw how local groups saw going to judicial review as a last resort. Unlike companies, local groups do not have the right of appeal when a local authority approves a controversial application. Costs protection provided groups with a certainty: they could assess the likely expenditure over the duration of a challenge and they could agree to take it forward.

I worry that there is not a clear rationale for the case the Government are making, as the Secondary Legislation Scrutiny Committee said. It is not as if the cases where the claimants sought to apply environmental costs protection rules were clogging up the courts—there were only 166 such cases in 2014-15 out of a total of over 20,000 judicial reviews launched. Equally, those cases had a markedly higher success rate than other types of cases going to judicial review, so they were not unreasonable.

There is evidence that, since the changes were introduced, there has been a chilling effect on the number of cases coming forward: environmental groups using Ministry of Justice data estimate a reduction of about a quarter since the introduction of the new regime. I ask the Minister for the ministry to clearly publish the data on the number of cases, so that the effects of the new regime can be fully evaluated.

Like the noble Baroness, Lady Jones, I find it very interesting to hear the fine words from last month of the Secretary of State for the Environment, Michael Gove, who said that,

“we have an opportunity, outside the EU, to design potentially more effective, more rigorous and more responsive institutions, new means of holding individuals and organisations to account for environmental outcomes”.

Frankly, in the light of this, those words ring pretty hollow.

[Lord Teverson (LD)]

My Lords, I have the privilege of chairing your Lordships’ EU Sub-Committee on Energy and Environment. It is in that capacity that I make my comments.

Earlier this year, we took evidence for and produced a report called Brexit: Environment and Climate Change. We went through the normal areas of devolution and the complexity of bringing environmental legislation back into the UK, our influence on climate change policy, policy stability and a lack of EIB investment. What took all our members by surprise was that many of our witnesses felt the most important issue was that the Government’s environmental action could be called to account—by the European Commission and the European Court of Justice—at present and that would disappear following Brexit. They also felt there were difficulties in replacing that authority. I quote our witness, Maria Lee, professor of law at UCL, who said of environmental legislation:

“It sounds so far-fetched to say that we might replace the Commission, but we have taken the Commission’s role in supervising compliance completely for granted for 40 years, and that will go. We should think about whether it is feasible to replace that with a parliamentary body, a government body or some other sort of public body that will supervise government and agency compliance with the law. It sounds ambitious in the current climate, but we have had this for 40 years and we are about to lose it. It is important”.


At the end of our evidence sessions, and when we wrote the report, we made two recommendations of the whole committee:

“The importance of the role of the EU institutions in ensuring effective enforcement of environmental protection and standards, underpinned as it is by the power to take infraction proceedings against the United Kingdom or against any other Member State, cannot be over-stated. The Government’s assurances that future Governments will, in effect, be able to regulate themselves, along with Ministers’ apparent confusion between political accountability to Parliament and judicial oversight, are worryingly complacent”.


That was the conclusion of the committee. It went on to say:

“The evidence we have heard strongly suggests that an effective and independent domestic enforcement mechanism will be necessary, in order to fill the vacuum”,


left by the Commission,

“in ensuring the compliance of the Government and public authorities with environmental obligations. Such enforcement will need to be underpinned by effective judicial oversight, and we note the concerns of witnesses that existing domestic judicial review procedures may be inadequate and costly”.

That was before these measures came in.

The Government responded by saying:

“The UK has always had a strong legal framework for environmental protections, and will continue to have a system of judicial review by UK judges after EU Exit. The judicial review mechanism enables any interested party”—


any interested party—

“to challenge the decisions of the Government of the day by taking action through the domestic courts”.

The committee felt that judicial review was a very weak substitute for current mechanisms, but it would certainly be disappointed if that judicial review procedure, which it sees as the right way forward post Brexit, has been weakened to this very considerable degree.