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.