Environment Bill

Debate between Lord Anderson of Ipswich and Baroness Ritchie of Downpatrick

Consideration of Commons amendments
Tuesday 9th November 2021 Lords Chamber

[Baroness Ritchie of Downpatrick (Lab)]

My Lords, I support the amendment in the name of the noble Lord, Lord Krebs. While I agree with the noble Lord, Lord Cameron of Dillington, that we have achieved some rapprochement, I was looking for total independence for the office for environmental protection and the consequences of that for Northern Ireland. While welcoming the progress, I am therefore still disappointed that the Government have rejected attempts to strengthen the independence of the office for environmental protection in law. I felt that needed to be placed on the face of the Bill.

I have carefully read what the Minister in the other place, Rebecca Pow, said yesterday on this important matter and note that she put some helpful statements on the record, including to confirm that the Government have no intention of issuing guidance before the OEP is up and running and has developed its own enforcement policy. She also recognised the conflict of interest inherent in this guidance power involving the implementation of environmental law by the Defra Secretary of State.

While these are welcome statements, my fear is that they could be forgotten or ignored by future Secretaries of State. I repeat the point made in several debates on the importance of future-proofing. I recall that I had amendments about the need for the independence of the OEP in Northern Ireland in Committee, on Report and during the last ping-pong. My great wish remains for such assurances to be written into the Bill, but sadly—like the noble Lord, Lord Cameron of Dillington —I believe we have achieved as much as we possibly can. Regardless of the outcome of this debate, I will write to the DAERA Minister in Northern Ireland to ask for similar assurances to be provided.

I ask the Minister here to tell the House whether he is confident that the Bill and this OEP will be totally accountable, and what discussions he has had with the DAERA Minister in Northern Ireland regarding the accountability of the OEP. We have a five-party Executive in Northern Ireland, and it is not always easy to achieve consensus on a wide range of issues. I would welcome answers to those questions.

[Lord Anderson of Ipswich (CB)]

My Lords, having pestered the Minister since well before Second Reading for meaningful judicial remedies on environmental review, I will speak to Motion B and Commons Amendments 33C and 33D, which I believe are the product of negotiations between a variety of departments —some of them powerfully opposed to what they see as constraints on development.

While I thank the Minister and his colleagues at Defra for shouldering that task, I sense that the imprint of the Treasury and the Department for Levelling Up, Housing & Communities is visible on the end result. The good news is that the courts are now to be trusted with a discretion over whether to grant a remedy, even if substantial hardship or prejudice may be caused to developers or other third parties. The bad news is that this discretion is, as the Minister has said, weighted: weighted in favour of the developer. Uniquely in our law, the court will be barred—save for an exceptional public interest reason—from granting a remedy in such cases, even if it is satisfied that a remedy is necessary to prevent serious damage to the environment or to public health. The Minister’s example of the harmfully polluting factory makes just that point.

The noble and learned Lord, Lord Mackay, spoke in Committee of an underlying feeling that environmental law is to be

“a grade below some other laws so that, although you fail to comply with it, you can still be all right”.—[Official Report, 30/6/21; col. 815.]

I regret that, while this amendment does achieve a limited upgrade for environmental law, a good deal of truth remains in his comment.

It was tempting—but would in the end have been futile—to fight on so, making the best of it, I end with two positive remarks. First, I draw attention to the helpful indication that the Minister has just given about what is intended by the obscure phrase “exceptional public interest reason”. By his own account, such a reason will exist whenever the public interest in preventing serious harm to the environment or to human health substantially outweighs the interest in preventing hardship to a third party. Less benign interpretations of that phrase might have been imagined, so I am grateful to him and his counterpart in the other place, Rebecca Pow, for their clarity and their express acknowledgment that their statements may in future be drawn on by the courts as a legitimate aid to statutory interpretation under Pepper v Hart.

Secondly, I take comfort in the fact that even after what we must assume to be the passage of the Judicial Review and Courts Bill, the full panoply of court remedies will remain available on judicial review—if not at the suit of the OEP, which will be allowed to bring judicial review proceedings only in urgent cases, then at least to other claimants with a sufficient interest. In that context, I note the Government’s view, expressed from the Dispatch Box on 30 June, that

“the OEP’s complaints and enforcement functions would not affect the rights of other persons to bring legal challenges against public authorities by way of a judicial review”.—[Official Report, 30/6/21; col. 823.]

In those circumstances, with profound thanks to the noble Lords from all parties and none who have signed and supported various amendments on this theme, and to the Minister and the Bill team, I offer a qualified but sincere welcome to Amendments 33C and 33D.

Environment Bill

Debate between Lord Anderson of Ipswich and Baroness Ritchie of Downpatrick

Consideration of Commons amendments
Tuesday 26th October 2021 Lords Chamber

[Baroness Ritchie of Downpatrick (Lab)]

My Lords, I will be brief, as this issue has been debated thoroughly at previous stages of the Environment Bill. I rise to move my Amendment 75C, under Motion N1, which would replace government Amendments 75A and 75B. This mirrors Amendment 31C, proposed by the noble Lord, Lord Krebs, and would achieve the same outcomes for the OEP’s independence in Northern Ireland as his would for the OEP in England.

My amendment would safeguard the OEP’s independence in the long term by amending the power of DAERA to guide how the OEP will hold Ministers to account on any environmental wrongdoings, to make it more targeted. It would also provide the OEP with complete discretion to undertake its activities in Northern Ireland and establish a role for the Assembly’s AERA Committee in overseeing the appointment of the Northern Ireland member on the OEP’s board. As the noble Lord, Lord Pannick, said on Report:

“If the Government accept that the OEP should have complete discretion, surely a matter of this importance should be in the Bill.”—[Official Report, 18/9/21; col. 886.]


The recent DAERA consultation in Northern Ireland on environmental plans, principles and governance indicated strong support for the establishment of the OEP in Northern Ireland. I am in no doubt that that will be a huge boon for our environmental governance, but unless its independence is enshrined for the long term in this Bill, we will have missed a serious opportunity to ensure that this important new body is protected from future political whims. I say that with great reluctance, but we have to consider the political dynamics that exist in the Northern Ireland Executive and the Northern Ireland Assembly. As the EFRA Committee chair Neil Parish MP said in the other place last week,

“we need to ensure that those offices are independent for all time.”—[Official Report, Commons, 20/10/21; col. 804.]

In summary, I disagree with the Government’s amendments in respect of the OEP in Northern Ireland and the need for it to be independent, and I hope the Minister will change his mind on this issue.

[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.