Environment Bill

Lord Anderson of Ipswich Excerpts

2nd reading
Monday 7th June 2021 Lords Chamber

[Lord Anderson of Ipswich (CB)]

Many noble Lords, including my noble friends Lord Cameron of Dillington and Lady Boycott, have already spoken of the limited independence of the OEP, citing issues of funding and the process for future appointments. The Defra family, as it has been called, is certainly a close one. What stands out for me is Defra’s power in Clause 24 to issue guidance to the OEP on how the OEP should enforce environmental law against Defra and other public authorities. As with other government amendments introduced in the Commons—I will come back to those—it is hard to avoid the sense of second thoughts being had and wings being clipped.

I will focus on a more technical but equally important issue: the enforcement powers of the OEP in Clauses 30 to 40 of the Bill. I venture to do so based on some experience of appearing in English and European courts for environmental activists, for Defra and, I admit with trepidation to the Minister, most recently for Heathrow Airport. As currently written, the new remedies risk being less effective than what we had, imperfect though the EU’s procedures were, and will certainly be less effective than they could or ought to be.

The investigatory stage will be long. Once the internal processes of the public authority have been exhausted, the OEP may conduct an investigation, conclude that there has been a serious failure to comply with environmental law and issue a decision notice, which may include non-binding recommendations. There may be cases that, given good will on all sides, lead to useful results, but they will not be the hardest cases—those in which a public authority has taken a decision that is thought to contravene environmental law. A recommendation from the OEP can neither undo a decision once taken nor require it to be revisited because of the well-established principle that the decision of a public authority affecting the rights of others cannot be altered or withdrawn—even if the decision-maker wanted it to be—in the absence of an express statutory power or the order of a court. Of course, the OEP, resources permitting, can apply to a court for an environmental review, but that procedure is itself fatally limited for two interlocking reasons.

First, it cannot even be invoked until the lengthy prelude has been completed, by which time the action complained of is likely to be well in the past. An investigation stage that cannot deal with unlawful decisions must be endured before the court that can deal with them is brought in, rendering the investigation not only pointless but counterproductive. I hope that the Minister, to whom I am grateful for the conversations that he mentioned—I think we have another one tomorrow—will consider introducing a shortcut procedure for urgent cases.

Secondly, the remedies that the court can grant on environmental review are remarkably restrictive. I do not mean just the absence of an EU-style power to fine, which, in my not-very-glamorous experience of defending against the European Commission in wastewater cases, was a background factor that operated keenly on the mind of the Government. I mean Clause 37(8), already referred to by the noble Lord, Lord Oates, which allows a decision of a public authority to be quashed by the court only if it

“would not … be detrimental to good administration”

and

“would not … be likely to cause substantial hardship to, or substantially prejudice the rights of, any person”.

This looks a bit like a prototype for the alarming proposal currently being consulted on by the Ministry of Justice to introduce a statutory presumption that the quashing remedy in administrative law should operate only with prospective effect. As with that proposal, Clause 37(8) will tend to leave unlawful decisions undisturbed, remove or reduce the incentive to challenge unlawful decisions and elevate private and bureaucratic interests over public interests—that is, the interest in a clean environment and, as the Bingham Centre explained in its briefing for this debate, the rule of law.

Finally, given the severe limitations on environmental review, much weight will rest on judicial review. I know that the Minister shares my admiration for James Thornton and his organisation ClientEarth, which has enforced environmental standards through the courts in a number of countries—including here, where it successfully held the Government to account for their failure to require action from 45 local authorities with illegal levels of air pollution. I would be grateful if the Minister could answer two questions. First, why was this Bill amended in the Commons—I do not for a moment suggest the initiative was his—to limit the OEP’s power to bring judicial review proceedings to urgent cases only? Secondly, can he undertake that the prolonged and, as I have explained, largely toothless processes of OEP investigation and environmental review will not be advanced by Defra in the courts as alternative remedies that could justify the refusal to individuals of permission to apply for judicial review?

There is much that is sound, even admirable, in this Bill, but aspirations are little use without the ability to ensure that they are realised. I am reminded of the words of our last Advocate-General in the European court, Eleanor Sharpston, who once wrote that German environmental law, which looked good but was hard to enforce in the courts, was like

“a Ferrari with its doors locked shut”.

As the Prime Minister said to Tom McTague of The Atlantic in a piece published this morning:

“People live by narrative … Human beings are creatures of the imagination.”


Those are perceptive words, and the vision of a powerful green watchdog holding the Government fearlessly to account makes for a good narrative. However, to usher into law a Potemkin watchdog and judicial discretions that are unnecessarily constrained would be a dereliction of our duty. Imagination must be backed up by reality, and this House can—and, I hope, will—help to achieve that.

Environment Bill

Lord Anderson of Ipswich Excerpts

Committee stage
Monday 28th June 2021 Lords Chamber

[Lord Anderson of Ipswich (CB)]

My Lords, I shall speak to Amendment 100, in the name of the noble Baroness, Lady McIntosh; Amendment 117, in the name of the noble Baroness, Lady Ritchie of Downpatrick; and the stand part debate in the name of my noble friend Lord Krebs, which would restore the position as it was when the Bill entered the Commons, with Clause 24 not standing part.

The conflict of interest which I shall suggest is presented by Clause 24 arises in the specific context of the OEP’s enforcement functions in Clauses 31 to 40, on which I have a number of amendments and on which I will focus now. Each of those functions, from starting an investigation, to issuing information notices and decision notices, to applying to the courts for environmental or judicial review, depends on an assessment by the OEP that a failure to comply with environmental law is serious, and, in the case of an application for judicial review, that it must be necessary to prevent or mitigate serious damage to the natural environment or to human health.

While those assessments may be for the OEP, Clause 24, read with Clause 22(6), allows Defra to frame the processes by which the OEP assesses the seriousness of environmental damage, the seriousness of damage to human health and the seriousness of law breaking for which Defra and other public authorities are responsible. As if those instruments were not blunt enough, Defra is given a further power to guide the OEP on how it prioritises cases. This guidance will presumably be additional to and more prescriptive than the guidance that we are asked to endorse in Clause 22(7). To the response that ministerial guidance will not impinge on the independence of the OEP, I would say: what is the point of guidance, if not influence? Why should the OEP not be trusted to work out its own priorities? And why should Defra have influence over the preparation of enforcement policy and the “exercise of enforcement functions”, to quote the Bill, that are specifically designed to be used against it?

As a former independent reviewer, although in a small way and in a very different field, I have reflected quite a bit on the risk of regulatory capture. This is usually thought of as a subtle and insidious process. It does not require the express approval of the legislature: the fertile soil of insufficient institutional independence, on which your Lordships have heard so much already, may be all that is needed for regulatory capture to germinate and to take hold. That is why Clause 24 is so unusual in the context of a body charged with enforcement. It actually signals regulatory capture on the face of the Bill.

The compromise Amendments 98 and 99—sticking plasters, as my noble friend Lord Krebs described them—would reduce the strength of that signal but would still leave the guidance power in place against a background of less than total institutional independence. For that reason, and with respect to those who put them forward, my enthusiasm for these compromises is limited. The Government’s first thoughts were best: the Bill is better without Clause 24.

Environment Bill

Lord Anderson of Ipswich Excerpts

Committee stage
Wednesday 30th June 2021 Lords Chamber

Finally, my Amendment 104 would use these penalties to fund the NHS. This is an absolutely crucial point and, I have to admit, the issue of air pollution is one of my pet topics. Very few people seem to understand what a public health hazard it is. Here, I am saying we should fund the NHS and local authorities to reduce the harms of air pollution and treat the associated illnesses, which very much affect children as well as adults. I admit this is my pet project, but it is one of the gravest examples of where politicians are failing us. It has become more visible recently that air pollution is a killer and also reduces well-being in many people, particularly children of course. So I believe it is a worthwhile destination for these penalty fines. I beg to move.

[Lord Anderson of Ipswich (CB)]

My Lords, I agree with the noble Baroness, whom it is a pleasure to follow, that the risk of penalty fines concentrates the mind wonderfully. When I used to defend Defra from the attentions of the European Commission in urban waste-water cases, I suspect the prospect was quite useful in concentrating the mind of the Treasury when money was requested for the Thames super-sewer and other mitigations. The Minister will say that no fining mechanism is necessary when the OEP has at its disposal a sufficiently intimidating set of judicially enforceable remedies. In the abstract, he may have a point, but, when looking at the Bill, as the noble Lord, Lord Duncan of Springbank, said at Second Reading, it is important not to confuse a full set of teeth with a flashy set of dentures. My Amendments 105 to 108 seek, in particular, to equip environmental review, the only route generally available to the OEP, not with dentures but with teeth.

The crucial amendment, to which the noble Baroness has already referred, is Amendment 107. In any case likely to prove contentious, it will be worthwhile for the OEP to pursue environmental review only if strong and enforceable remedies—notably, the power to quash unlawful decisions—are available at the end of the road. Clause 37(8), which is without precedent in any Act of Parliament, removes the court’s power to grant such remedies, no matter how much or little time may have elapsed, and no matter how serious the damage to the environment or public health, unless the court can satisfy itself that the grant of a remedy would not be likely to cause substantial hardship to, or substantially prejudice the rights of, any person. This is, though disguised in the drafting, a rebuttable presumption against the grant of any remedy at all.

There is a yet further hurdle: the court would have to be satisfied also, before granting a remedy, that a remedy would not be “detrimental to good administration”—although how good administration could be founded on policies and decisions that are unlawful is certainly an interesting conundrum. Take the example of an air quality case: just the sort of systemic issue of national importance that is identified in Clause 22(7) as particularly suitable for the OEP. Let us say that the court hearing an environmental review finds that a public authority has failed to produce legally compliant air quality plans and, to ensure that the law is enforced, wishes to require it to do so. Clause 37(8) would stop it from doing so unless the court was satisfied that no one would be likely to suffer substantial hardship or prejudice as a result. The evidence of one taxi driver who had recently sunk his savings in a non-compliant vehicle would be not only relevant but determinative of the issue, no matter serious the breach of law and no matter how many lives might be saved by a compliant plan. Indeed, even if there were no such evidence, the court could still not grant a remedy without, in effect, proving a negative: that there is nobody out there who could suffer the requisite substantial hardship or prejudice.

Similarly, an unlawful failure to designate a nitrate-vulnerable zone could not be corrected unless the court could be sure that no affected landowner would meet those thresholds. An unlawful permit for an oil refinery would have to stand if the owner had invested on the strength of it, whether in good faith or otherwise. A future judgment that new gas boilers are incompatible with statutory net-zero obligations would be unenforceable too. Irrespective of the benefits, there always would be people with something substantial to lose. In short, the more significant the issue and its environmental impact, and the more it is capable of impacting on private or even administrative interests, the more likely it is that the grant of any remedy will be automatically excluded by this clause.

Of course there will be cases, including some cases decided long after the event, in which a private interest is so strong, and the environmental interest so relatively weak, that a court would be justified in refusing a remedy in respect of unlawful conduct. That is precisely why the grant of remedies by courts of judicial review is, and always has been, discretionary and flexible. Amendment 107 would do no more than replicate that orthodox and unobjectionable position in the context of environmental review. It does not even require the normal remedy of damages to be available. Clause 37(8) places private and bureaucratic interests in the perpetuation of unlawful decisions on one side of the balance, and decrees that even the heaviest public interests will never outweigh them. The twin attributes of justice are her scales and her sword; Clause 37(8) would remove them both. All we ask if that she should be allowed to keep them, so that public authorities can be kept to their legal obligations in this most vital area.

Amendment 108 would give the OEP an alternative to environmental review by opening up a wider range of cases in which the OEP could pursue the established route of judicial review. Clause 38(1) uniquely handicaps the OEP as a claimant in judicial review by requiring it to surmount two extra hurdles of seriousness and urgency—nobody else faces those. By removing at least the second of those hurdles, which was only inserted in the Commons, we would go some way towards redressing the OEP’s disadvantage and putting it on the same footing as any other interested group or individual.

Amendments 105 and 106 address further points on environmental review. The point of 105 is to reduce the scope for procedural game-playing by lawyers. It is the nature of things that unlawful practices may spread, or be repeated, during the course of the OEP investigation that is a precondition for the commencement of environmental review. It is surely sensible that the scope of any environmental review should not be frozen at the time, months or even years earlier, when the investigation began. If later conduct raises the same issues, there should be no obstacle to putting it before the court. I hope the Minister will agree with that, and also that Clause 37(2) is too narrowly drafted for this subject to be adequately dealt with by assurances from the Dispatch Box.

Amendment 106 focuses on the statement of non-compliance, a concept introduced to the law by Clause 37. As the department has accepted in its FAQs, published on Monday, such statements may have reputational or political effects but are not in themselves a legal remedy. So they are not a prize to which the OEP is likely to feel justified in devoting its limited resources. This amendment would remove the most obvious statement of their legal powerlessness—that they do not affect the validity of the conduct in respect of which they are given—but would not, I freely accept, be a substitute for the remedies whose full application would be restored by Amendment 107.

Finally, and in response to a concern I raised at Second Reading and in person, the Minister has been good enough to write in an all-Peers letter that it is the Government’s view that OEP complaints and enforcement functions will not affect the rights of other persons to bring legal challenges against public authorities by way of judicial review. It would be the final irony if the imperfect mechanisms of environmental review were to be advanced in the courts by public authorities as a reason for withholding access to what remains, at least for now, the gold standard of judicial review. I accept that such decisions are ultimately for the courts, but the Government’s view is significant and I would be grateful if the Minister could repeat his assurance from the Dispatch Box so that it appears in the official record.

[Baroness McIntosh of Pickering (Con)]

I am delighted to follow the noble Lord. I support the amendments in this group. I join my noble friend the Minister in congratulating my noble friend Lady Bloomfield on her birthday; I am sure there is nowhere she would rather be celebrating her birthday than with us this afternoon. Her support on the Bill is greatly appreciated.

My starting point is what my noble friend has said on a number of occasions: that we are seeking to achieve a regime whereby we replicate, as closely and as effectively as possible, the regime to which we signed up with the European Union. I go back to Britain in the 1980s, when I was working as an adviser; an A-grade woman, and a woman administrator in the Conservative group in the European Parliament, was quite a thing in those days. Noble Lords may recall—the noble Duke, the Duke of Wellington, recalls only too well—that the United Kingdom had a terrible reputation as the dirty man of Europe, with the dirtiest waters, some of the dirtiest rivers and some of the dirtiest beaches. Many maintain that change came not just by signing up to high-reaching directives, such as the EU water directive—I pay tribute to the Secretaries of State for the Environment at the time—but also the massive investments that water companies made over successive years and, obviously, the sterling efforts of the noble Lord, Lord Anderson of Ipswich, who made sure that he held the water companies’ feet to the fire.

I am concerned that there will be no real teeth. I hate using that word because I went to the dentist recently and it brings back too many memories of that, but I think it is a good word to use. I believe that one reason why the European regime has been so successful in holding water companies, chemical companies and agricultural processes to the fire is because it had very real sanctions. I therefore pay tribute to the noble Baroness, Lady Jones of Moulsecoomb, and the noble Lord, Lord Anderson of Ipswich, for their amendments. Mine, as the noble Baroness said, goes a little further. It says:

“In the event of a severe breach of environmental law, financial penalties may be imposed.”


This echoes a lot of the arguments put forward by the noble Lord, Lord Anderson of Ipswich.

The offending subsections of Clause 37 include subsection (7), which states:

“A statement of non-compliance does not affect the validity of the conduct in respect of which it is given.”


They also include subsection (8) in particular, which goes further:

“Where the court makes a statement of non-compliance it may grant any remedy that could be granted by it on a judicial review other than damages, but only if satisfied that granting the remedy would not … be likely to cause substantial hardship to, or substantially prejudice the rights of, any person other than the authority, or … be detrimental to good administration.”


My noble friend the Minister has to put our minds at rest this afternoon and show that it should not really be just the courts that are left to impose the penalty. If the OEP is to be worth its weight in gold, which I hope it will be, it has to have the power to implement the decisions that have to be taken when holding public bodies to account—it is extending to public authorities for the first time—and would mirror the powers that currently exist under the European Commission, which is the body that we are told the OEP is meant to replicate in fulfilling our environmental sanctions post Brexit.

I am grateful to the Bar Council for its help in preparing my amendment. As I have said before:

“The requirement that the breach be severe to justify a financial penalty is noted. It is assumed that this is to ensure that a financial penalty be the exception rather than the rule”.


So, it should not just be a minor infraction; it should be a major infraction and a severe breach. Also, this is

“in the context that the OEP’s power to apply for an environmental review is already on the condition that it considers the authority’s failure to comply to be serious. To that end, it might be less open for debate as to whether it is severe or serious if the court’s discretion were wider, and therefore based upon all the circumstances of the case, but to be exercised where those circumstances are exceptional.”—[Official Report, 28/6/21; cols. 562-63.]

In making an argument to reject Amendment 107A, my noble friend has to give us the alternative that there will be very real and immediate powers. As I am sure the noble Lord, Lord Anderson, will say, if the OEP were to impose a penalty, it would be more or less instantaneous. Going to court means that there will inevitably be a delay, so the spillage and the damage could take more effect than if we had the OEP imposing the penalty, which is my preferred route. I hope that I will get the support of the House for Amendment 107A.

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.

Environment Bill

Lord Anderson of Ipswich Excerpts

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.

[Baroness McIntosh of Pickering (Con)]

My Lords, I will pose a couple of brief questions to my noble friend the Minister. He will recall that I supported the original amendment on the independence of the OEP at earlier stages. I cannot think of any other body to which a department has issued guidance that is meant to be overseeing that department. To be honest, I preferred the original Amendment 31 and am struggling entirely to understand the contents of the new Amendment 31C.

--- Later in debate ---

Moved by

[Lord Anderson of Ipswich]

At end insert “, and do propose Amendment 33B in lieu—

33B: Clause 37, page 22, line 23, 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 deciding whether to grant such a remedy, the court must have regard to—
(a) the nature and circumstances of the non-compliance;
(b) any detriment to good administration that would result from granting or failing to grant a remedy;
(c) the interests or expectations of persons who would benefit from the grant of a remedy;
(d) the interests or expectations of persons who have relied on the failure by the public authority to comply with environmental law;
(e) any other matter that appears to the court to be relevant.””

Environment Bill

Lord Anderson of Ipswich Excerpts

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.

[Baroness Jones of Whitchurch (Lab)]

My Lords, I will speak specifically on Motions A, A1, B and D. My noble friend Lady Quin will then return to Motion C later in the debate. I thank the noble Lords, Lord Krebs and Lord Anderson, for their perseverance and commitment to achieving proper OEP independence and enforcement powers. As we have said repeatedly, these measures are necessary to ensure that the environmental standards set out in this Bill, and indeed elsewhere, are protected for the longer term. I am also grateful to the Minister and the Bill team for listening and engaging on the issues that we have raised.

However, what we have before us today is not ideal, and we believe that the Government could have gone further to amend the Bill to give the assurances for which noble Lords across this House have repeatedly pressed. Throughout the process, we have supported the noble Lord, Lord Krebs, in his determination to protect the independence of the OEP. This has been a fundamental issue and we continue to support Motion Al, which he has tabled today. We believe, as his amendment sets out, that the OEP should have complete discretion to carry out its functions free from the interference of government.

In this context, there have been a number of areas of detail which have been helpfully clarified by the Government in the Commons and, again, in this Chamber by the Minister today. For example, despite the Government’s insistence on the right to issue guidance to the OEP, we welcome the recognition that this should be limited to the areas of OEP enforcement policy listed in Clause 22. Quite rightly, it has been made clear that the Secretary of State cannot issue guidance on enforcement issues against the Defra Secretary of State, as this would be a clear conflict of interest. It has also been helpfully clarified that it would be within the scope of the OEP’s remit to investigate broad categories of individual cases that might have a common theme. This includes cases that have a discrete local impact but national implications.

We also reiterate our support for the proposal that Parliament should scrutinise the draft guidance before it is issued. All this goes some way to providing reassurance on an issue that we nevertheless believe continues to represent a flaw in the overall construct of the legislation. Can the Minister also assure us that before the Government publish any draft guidance, they will consult the OEP? Can he also assure us that the framework which will be agreed with the OEP will also set out its commitment to a five-year indicative budget? These are issues which the Minister will know are outstanding from earlier debate.

On the issue of enforcement, we welcome the tabling of the Government’s amendments to Clause 37(8), which address the concerns that the threshold for achieving a successful judicial review was insurmountable and anyway gave precedence to the interests of third-party polluters rather than those of the environment and the community. The amendment recognises that, on occasions, granting a remedy to address behaviour or damage will be necessary even if it may cause substantial hardship to the rights of a third party.

We have argued from the beginning that the courts should have the discretion to weigh all these factors equally in the balance. The Government’s amendments do not achieve that objective, but nevertheless we support the noble Lord, Lord Anderson, in the view that this compromise wording is a step forward and the best that we will get at this stage of the process. No doubt the exact meaning of “the exceptional public interest” test will be played out in the courts in years to come, and we very much hope that the widest possible interpretation of it will become the norm.

The Minister will not be surprised to hear that we still have reservations about the final wording in the Bill on these issues, but nevertheless, we accept that progress has been made, and hope that he can reassure us on the remaining outstanding questions about the OEP’s independence.