Environment Bill

Baroness Jones of Whitchurch Excerpts

Report stage
Wednesday 8th September 2021 Lords Chamber

[Baroness Parminter (LD)]

My Lords, I will not detain the House for long because the noble Lord, Lord Krebs, has made a compelling case for his amendment, to which I was very happy to add my name. I just want to add a reflection on the point which I think all of us feel very strongly about. There will sometimes be occasions when the OEP will have to take Ministers to task. There has to be not only a degree of separation between the OEP and the Government but also public confidence in that degree of separation.

I ask the Minister to reflect on the fact that the public will see what is happening in Scotland, where the body they are setting up has no such curtailment of its powers. Indeed, Environmental Standards Scotland has the powers to take the steps it considers appropriate to secure public authorities’ compliance with environmental law. The public need to see that there is independence between the Executive and this body. If they look to Scotland and see what is happening, that is another reason to support the case that the noble Lord, Lord Krebs, has made so compellingly. Therefore, I support him and the noble Baroness, Lady Ritchie. If they should be pushed to a vote, our Benches will support them.

[Baroness Jones of Whitchurch (Lab)]

My Lords, I am pleased to support Amendments 24 and 30, to which I have added my name. The noble Lord, Lord Krebs, as ever, has set out persuasively why we think Amendment 24 is so important. As he said, a strong, effective and trusted OEP is essential to underpin all the other measures in the Bill. As the OEP will be scrutinising the Government’s compliance with environmental law, it is vital that those points of separation, as well as interface, are set out clearly from the start. We cannot afford to fudge the relationship, which, I am sorry to say, the government amendments attempt to do.

Our amendment would take out Clause 25, which allows the Secretary of State to issue guidance to the OEP, and replace it with one that sets out that the OEP has “complete discretion” in its enforcement policy, exercising its enforcement functions and preparing a budget. It would also make it clear that the non-executive appointments must be approved by the relevant parliamentary committees.

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[Baroness Parminter (LD)]

My Lords, I added my name to this amendment in the name of the noble Lord, Lord Anderson of Ipswich, and we wholeheartedly support it. My particular concern is around the planning issue, which the noble Lord, Lord Duncan of Springbank, has rightly articulated. My worry is that the Government have introduced the provisions they have because they fear that there is currently too much weight given to environmental protection in the planning system. That is something we must oppose. In Committee, the noble Lord, Lord Krebs, said that it

“biases the scales of justice”—[Official Report, 30/6/21; col. 810.]

and changes the balance away from the environment. That is the problem and that is why we on these Benches support this amendment.

[Baroness Jones of Whitchurch (Lab)]

My Lords, I add my voice in support of these amendments. We very much concur with the arguments put forward this evening. We agree that these proposals are quite modest. I think the noble Lord, Lord Anderson, has been quite modest in his redrafting. I hope, as I said in the previous group, that if these amendments are passed this evening, the Government will use the opportunity to have a proper dialogue with those who have been working on these issues. I am sure the Minister has got the sense of the strength of feeling on this and we hope that we will not see these amendments in any shape or form coming back at a later stage. I look forward to the Minister’s response.

[Lord Goldsmith of Richmond Park (Con)]

I thank all noble Lords for their brisk contributions. The noble Lord, Lord Khan, is looking hungry. I also thank the noble Lords, Lord Anderson of Ipswich and Lord Krebs, for their engagement throughout the various stages, including a number of discussions with me and separate discussions with officials. I have carefully considered the government position on these clauses and I hope I can persuade noble Lords that the approach we are taking is the right one.

First, on Amendment 26, the Government support the intention to ensure that the OEP’s enforcement procedures resolve issues as efficiently and effectively as possible. However, it is only right and appropriate that before the court is asked to examine issues in an environmental review, the OEP has given the public authority adequate opportunity to respond and to remedy the problem directly. This follows a similar principle to the pre-action protocols which must be followed for other types of legal proceedings, including, for example, judicial review, as well as personal injury and clinical negligence proceedings, where issues are set out in writing prior to court action.

Many issues will be resolved through constructive dialogue in the course of an OEP investigation and through the serving of an information notice. That is what we want. Where required, this would then be followed by a decision notice. This will ensure that potential failures are resolved at the earliest possible opportunity, avoiding the need for time-consuming and costly litigation in most cases, and better enabling the OEP to drive systemic change.

Turning to Amendment 27, I reiterate the importance of the existing provision under Clause 38(8). We have to recognise the unique context in which environmental reviews will be occurring, potentially many months after decisions were taken and outside normal judicial review time limits. Providing protection for third parties who may have acted in good faith on the basis of certain decisions is therefore essential to protect fairness and certainty, values that lie at the heart of our civil justice system.

As I have outlined before, judicial discretion alone would not be sufficient to provide this certainty, as the strict time limits to bring a judicial review themselves demonstrate. We do not solely rely on the courts to balance the impacts of delay against other factors in this context, as the resulting uncertainty would be too great and unfair on third parties. Environmental reviews will be taking place outside judicial review time limits, so alternative protections are necessary.

Furthermore, the provision in Clause 38 to protect third-party rights is not novel. Indeed, it is an extension of the existing position for challenges—for example, under Section 31(6) of the Senior Courts Act 1981. Some noble Lords have argued today and in previous debates that the provision in Clause 38(8) renders the OEP’s enforcement framework redundant but that is absolutely not the case. It is important to note that restrictions in Clause 38(8) are unlikely to be triggered in most cases that the OEP will take forward.

In response to comments by the noble and learned Lord, Lord Hope, the Bill guides the OEP to focus on cases of national importance. Therefore, individual local planning decisions most likely to impact third parties are unlikely to be pursued. Even if they were pursued, the Bill sets out that the court is restricted from granting remedies only where to do so would cause “substantial” hardship or “substantial” prejudice to the rights of any person, or be detrimental to good administration. The court will have discretion to consider and apply the test as set out in the Bill, not Ministers or the Government.

Cases where remedies could require a change in policy or in the way in which legislation is to be interpreted would be unlikely to invoke those safeguards. Those are the cases that we expect the OEP to focus on. Take, for example, an alleged failure by government to meet a statutory environmental target. A court could consider granting a mandatory order requiring government action, and although that may have some impact on third parties such as local businesses, it is unlikely to amount to substantial hardship or prejudice. As I have tried to explain before, an individual or business must reasonably expect some changes in an evolving regulatory landscape. But that is different from the question of the status of an existing planning permission, for example, where there is a greater expectation of certainty. As such, the existing provision is appropriate, and this proposed amendment could cause damaging uncertainty.

Finally, I turn to Amendment 28. Clause 39(1) is vital to providing clarity when the OEP is considering enforcement action. The concern is that removing the urgency condition would create confusion and uncertainty as to which route the OEP should pursue for any given case. To enable the OEP to bring standard judicial reviews during the normal time limits would limit the possibility of the wider benefits that could have been delivered through the OEP’s bespoke notice stages.

By liaising directly with public authorities to investigate and resolve alleged serious breaches of environmental law in a targeted manner, the OEP will be able to drive systemic environmental improvements. This will lead to better outcomes for complainants, the public and the environment, wherever possible without the need to resort to costly or time-consuming litigation. Unlike judicial review, there are no time limits in which the OEP can apply for an environmental review. This is to allow the OEP sufficient time and opportunity to resolve the issue through its notice processes. It will give complainants the confidence to attempt to resolve matters through the internal complaints procedures of public authorities in the knowledge that, if the matters were not resolved, they could bring them to the attention of the OEP, who could bring legal challenge if necessary. The proposed amendment would therefore lead to unnecessary litigation, which would ultimately limit the OEP’s ability to effectively focus its activities on holding public authorities to account on serious breaches of environmental law and achieving long-term systemic change. I should again emphasise that the Government have taken considerable time to consider these matters, but we are confident in our position.

Before I conclude, I should emphasise that the OEP’s enforcement powers are different from, and will operate more effectively than, those of the European Commission. That point has been made by a number of noble Lords as a counterpoint. The OEP will be able to liaise directly with the public body in question to investigate and resolve alleged serious breaches of environmental law in a more targeted and timely manner. In environmental review, the OEP can apply for judicial review remedies such as mandatory quashing orders, subject to the appropriate safeguards, which will work to ensure compliance with environmental law. The EU Court of Justice cannot issue those kinds of remedies to member states.

I hope that I have at least gone some way towards reassuring noble Lords and I urge them to withdraw or not move their amendments.