Environment Bill

Baroness McIntosh of Hudnall Excerpts

Committee stage
Wednesday 30th June 2021 Lords Chamber

[The Earl of Caithness (Con)]

My Lords, before I speak to the amendments, I apologise to my noble friend the Minister for including his name in what I said about the Forestry Commission on Monday. It was quite of wrong of me to do so, and I apologise to him for that. He has confirmed that he does not agree with me, in any case.

As I turn to the amendments, there is now very little for me to say. The Bill has been savaged by the noble Lord, Lord Anderson of Ipswich, and the noble and learned Lord, Lord Thomas, a former Lord Chief Justice. The noble and learned Lord, Lord Hope of Craighead, and my noble and learned friend Lord Mackay of Clashfern will doubtless similarly savage the existing wording.

My concern is that the OEP must be not only independent but seen as such, and it must be authoritative. If it is not, it is not going to work; it will get into disrepute. The Bill as it stands does not help in seeking to achieve the goals that we all want. This takes me, finally, on to the question of financial penalties. I know how effective the threat of financial penalties has been on the Government, but I actually see little point in the OEP being able to fine the Government, because it comes out of one pocket and goes straight back into another pocket to be recycled. It is not the threat that the Europeans had of a financial penalty on the Government. There has to be a better way of making certain that the OEP’s decisions have the cudgel that the noble Lord, Lord Krebs, referred to.

[The Deputy Chairman of Committees (Baroness McIntosh of Hudnall) (Lab)]

My Lords, the noble Lord, Lord Blunkett, has withdrawn, so I call the noble and learned Lord, Lord Hope of Craighead.

[Lord Hope of Craighead (CB) [V]]

My Lords, I wish to speak in support of Amendments 105 to 108 and to endorse all that the noble Lords, Lord Anderson of Ipswich and Lord Krebs, and the noble and learned Lord, Lord Thomas of Cwmgiedd, said about them.

Rolling up multiple instances of misconduct into a single application, as Amendment 105 seeks to permit, makes obvious sense. There are limits to the extent that rules of court may go to promote that objective, although this is certainly something that the courts would like to do. Amending Clause 37 in this way will significantly improve the process, as the noble Baroness, Lady Jones of Moulsecoomb, said in introducing this group, and it will also avoid abuses. Therefore, I warmly endorse this amendment.

Clause 37(8), which seeks to restrict the discretion of the court to grant a remedy, raises the threshold on what the court may do too far. Removing that restriction is what Amendment 107—the crucial amendment, as the noble Lord, Lord Anderson, said—is all about. Along with others who have worked with judicial review in practice, I regret what the Government are proposing. I understand the points made in the Defra note about innocent third parties and the effects of delay in some cases when issues come to court, but the courts themselves have no difficulty in taking points of that kind on board and making allowances for them. The flexibility of judicial review, which is one of its strengths and ought also to be part of environmental review, must be preserved.

Clause 38(3) about the urgency condition, which Amendment 108 seeks to remove, is another fetter on the jurisdiction of the courts which is hard to justify, as others have said.

As the noble and learned Lord, Lord Mackay of Clashfern, said to me one day years ago, I think shortly after he entered this House as Lord Advocate and began to see what Governments can achieve by legislation, “legislation is a blunt instrument”. I have never forgotten that remark. All too often legislation has unforeseen consequences. His wise remark serves as a warning to legislators not to trespass too readily into areas of law and practice which depend on the exercise of judicial discretion, and this is such an area. The point is that while legislation lays down rules, only other legislation can change those rules, and they are rules which the court must obey. By contrast, the common law which judges apply can and does adapt itself as case law develops. That is its strength and what judicial review has been doing for decades. That is why it is much more sensitive to the demands of each case and the kinds of problems that the Defra note refers to. It should not be impeded in the way that the Government are seeking to do in these clauses, and that is why I support these amendments.

[The Deputy Chairman of Committees (Baroness McIntosh of Hudnall) (Lab)]

Although she is in her place, I understand that the noble Baroness, Lady Boycott, is not participating in this debate, so I call the noble Baroness, Lady Young of Old Scone.

[Baroness Young of Old Scone (Lab) [V]]

My Lords, when amendments are supported by noble Lords of the calibre of the noble Lord, Lord Anderson, and the noble and learned Lord, Lord Thomas, a renowned scientist and environmentalist in the shape of the noble Lord, Lord Krebs, and a former Minister—the noble Lord, Lord Duncan of Springbank—if I were the Minister, I would roll over and accept them. I hope he will do just that. I cannot add to the lucid case made in support of Amendments 105 to 108 by those noble Lords I have mentioned, other than, in layman’s terms, to add my voice of concern about the proposed restrictions on judicial discretion to grant remedies when it is found that there has been a breach of environmental law on an environmental review and the limitations on the OEP’s powers to bring judicial review proceedings.

The proposed statement of non-compliance is risible, since the public body can publish a response but carry on regardless, with whatever it has done wrongly remaining valid and in place. This is not a toothless remedy; it is no remedy at all and will bring the OEP immediately into disrepute. To make matters worse, a judge cannot issue a stronger remedy if it would

“be likely to cause substantial hardship to, or substantially prejudice the rights of, any person”

or

“be detrimental to good administration.”

We have heard cases from across the environmental spectrum from previous speakers. Can the Minister tell the Committee how this provision can possibly work, as there is bound to be an individual or group who could be shown to have suffered some adverse impact? It is called life, I think.

Environmental review is supposed to complement rather than replace judicial review, but the Bill allows the OEP to use judicial review only where an urgency condition has been met:

“to prevent or mitigate serious damage to the natural environment or to human health.”

Other similar bodies have access to judicial review at their discretion, and that cannot be denied to the OEP without it becoming ineffective in its enforcement role.

Amendments 106 to 108 would enable the OEP to exercise at least some effective powers to hold government and public bodies to account for compliance with environmental law. Personally, I would also give the OEP whacking great powers, as outlined in Amendment 105 from the noble Baroness, Lady Jones of Moulsecoomb. There is nothing like an eye-watering fine of the scale that the European Commission used to apply as a last resort to change the mind of a government department or an agency that has gone off-piste.

I have chaired a regulatory body that attempted to regulate government bodies and the Government themselves, and I tell the Committee that it is not easy. If you do it with rigour and toughness, the Government hate you and take revenge. If you do it in a toothless way, the public lose confidence in you and take revenge. It is difficult enough with a full set of tools in the toolkit. Unless these amendments are passed, the OEP’s toolkit will be significantly bare.