Environment Bill

Lord Anderson of Ipswich Excerpts

Report stage
Wednesday 8th September 2021 Lords Chamber

Moved by

[Lord Anderson of Ipswich (CB)]

26: Clause 38, page 22, line 31, at end insert—
“(2A) The OEP may include in the application for an environmental review a request that the court also review additional alleged conduct constituting a failure to comply with environmental law where—(a) the additional conduct is similar to, or related to, the conduct described in the decision notice, and(b) the additional conduct is conduct of—(i) the public authority to whom the decision notice was given, or(ii) another public authority, where that additional conduct indicates there may be systemic failures to comply with environmental law.(2B) Where subsection (2A) applies—(a) the OEP need not have given an information notice or a decision notice to the public authority to whom the additional conduct relates in respect of that additional conduct, and(b) the court may review that additional conduct if it thinks it reasonable to do so.”Member’s explanatory statement
This amendment allows greater flexibility to consider multiple instances of misconduct rolled up into one single application, rather than issuing separate proceedings in respect of each individual incident.

[Lord Anderson of Ipswich (CB)]

My Lords, I am grateful for the opportunity to take these amendments before the dinner break. Like other nobles Lords, I will be as brief as I can.

The purpose of these cross-party Amendments, 26, 27 and 28, in the now-familiar dentistry metaphor, is to provide the OEP with a working set of teeth. They do not give enforcement powers to the OEP itself, they do not allow it to claim damages and they do not replicate the fining power that gave the European Commission the big stick that it used so effectively to concentrate minds. All they do is allow the High Court its usual discretion to enforce the environmental duties of public bodies by the grant of appropriate remedies. That is a modest aim but also, I suggest, a necessary one if the OEP is to achieve even baseline credibility, whether at home or internationally, as an enforcement body.

The “key facts” note on the OEP, circulated earlier today, correctly states that the OEP will be able to bring legal proceedings against public authorities but is less forthcoming about when it can do that and to what purpose. Three other key facts, not dwelled upon in the Government’s note, lie behind these three amendments. First, the OEP is unique among interested persons and bodies in being disqualified from bringing proceedings for judicial review, save in urgent cases. My Amendment 28 seeks to correct that.

Secondly, the bespoke process of environmental review, designed for the OEP to keep public bodies up to the mark, is available only after each individual breach of duty and each repetition of such a breach has undergone the cumbersome pre-litigation process set out in Clauses 32 to 37. My Amendment 26 would introduce greater flexibility and indeed speed into that process.

Thirdly and most significantly, Clause 38(8), the subject of my Amendment 27, introduces to environmental review a presumption, unique I think in our law, against the grant of any meaningful remedy. Victory for the OEP is rewarded only by a statement of non-compliance, which has no legal effect and which the Minister accepted in Committee is “not … considered a remedy”.

--- Later in debate ---

[Lord Anderson of Ipswich (CB)]

I am grateful to all noble Lords who have contributed to this short if somewhat one-sided debate and, of course, to the Minister for his characteristically courteous and speedily delivered response.

In view of the time, I do not seek to summarise the excellent points made in support of these amendments. I simply pick up one point made by the Minister when he spoke of the need for certainty, which, as our Amendment 27 accepts, is an important factor in the court’s discretion. The need for certain outcomes needs to be balanced against the need for lawful outcomes, which is I think the point that the noble Lord, Lord Duncan, was making; that balance can be performed by the courts only in the individual case and not by preordaining the result.

Having listen carefully to the Minister, I see a stark contrast between the wish to portray these clauses as an effective series of remedies and the reality that they fall well short. I regret that the Minister has not been able to give the requested assurances and, for that reason, I propose to test the opinion of the House on Amendment 27.

[The Deputy Speaker (Baroness Fookes) (Con)]

We are considering Amendment 26.

[Lord Anderson of Ipswich (CB)]

I am so sorry. I meant to move the amendment but put only Amendment 27 to the vote. I must apologise that I did not rehearse myself in the proper language.

Amendment 26 withdrawn.

Moved by

[Lord Anderson of Ipswich]

27: Clause 38, page 23, line 8, leave out subsection (8) and insert—
“(8) Where the court makes a statement of non-compliance it may grant any remedy that may be granted by it on a judicial review other than damages.(8A) In determining whether it would be in the interests of justice to grant a remedy, the court must have regard to—(a) the nature and consequences of the authority’s failure to comply with environmental law, and(b) the likelihood that the grant of a remedy would cause—(i) substantial hardship to, or substantial prejudice to the rights of, any person other than the authority, or(ii) any detriment to good administration.”Member’s explanatory statement
This amendment removes the restrictions on the discretion of a court to grant a remedy where the court has found there to be a breach of environmental law, while requiring the court to have regard to relevant factors. The bar on awarding damages to the OEP is retained.

[Lord Anderson of Ipswich (CB)]

On this amendment, I wish to test the opinion of the House.