Environment Bill

Lord Duncan of Springbank Excerpts

2nd reading
Monday 7th June 2021 Lords Chamber

[Lord Duncan of Springbank (Con)]

I thank the noble Earl, Lord Kinnoull, for withdrawing and allowing me to speak a little earlier. I draw attention to my entries in the register concerning forestry, energy and wider environmental concerns. I want to touch upon three issues—the independence of the office for environmental protection, territorial co-operation, and the wider question of environmental review versus judicial review.

Let me begin at the beginning. The real question is: does the OEP have teeth or just flashy dentures? That is yet to be clearly resolved. As a former Northern Ireland Minister, I am responsible for certain public bodies there. The public service ombudsman was set out in law, not subject to the direction or control of a Minister. It was a genuinely independent body set out in statute. An obligation to be impartial is useful, but it is not the same as statutory independence. We must recognise the difference and ask the question: why are we in a situation in which impartiality is our expected and accepted situation, rather than independence?

As a former Member of the European Parliament, I recognise how important the infraction proceedings undertaken by the European Commission were to bring about change, not just by their intervention but by the fear and threat the intervention can represent. The absence of that independence may yet be a detriment to our ability to deliver the noble causes this Bill sets out. A number of noble Lords have touched upon them—as part of the Defra family, there is a question of how the Secretary of State may offer guidance and how that guidance must be taken into account by that independent office. Those elements strike at the heart of independence. We need to resolve them; I think clarification is probably all that is required, but it is required.

The notion of territorial co-operation is also important in this regard. As a former Minister in the three territorial offices of the United Kingdom, it became clear to me that the green groups in each would have preferred a common UK position to address the issues post Brexit. We do not have that. What we have instead—the Bill is not wholly clear in this area—is how we create legislative consent mechanisms with each of the legislative assemblies and nations in order to bring about co-operation. But as we all know, on many of these issues, borders are meaningless, whether in terms of the archipelago we inhabit, its biogeography, the seas that surround us and the air above us—each requires a common solution and approach. It will be very challenging to secure that if, on each occasion, we need to secure legislative consent Motions to bring them about. We need to find a way of exploring this and finding a mechanism that works to the benefit of all. I think we all share the same common ambition and common cause, but we need to be conscious that the individual Parliaments may have very different approaches. We should recognise that at the outset.

My final point concerns the notion of an environmental review versus a judicial review. Several noble and noble and learned Lords have spoken on this issue and I will not seek to echo their points, but they are valid. I shall touch on the views of the Bingham Centre on this. A judicial review is important because as it begins to explore the issues, the outcome of that exploration voids the law that it casts down, whereas an environmental review simply offers an exploration and the iniquity of the law which is identified is not voided—it can continue. Justifications are given for that in the Bill, but to me those justifications look a little creepy, if I can be frank, because they basically allow a situation in which the individuals affected can find themselves able to assert that they are negatively affected and therefore can continue with an unlawful act in a situation in which that unlawful act will have an environmental consequence. The environmental consequence must be paramount in these situations because that is why we are creating the office for environmental protection. If the environment is not paramount, what is the office for?

That begs the question, if we are looking at creating an environmental review rather than a judicial review, whether the resultant environmental review is not as powerful as a judicial review. We need to consider what that means in terms of the “would be” concerns that an operator in this area should be alert to, conscious of the risk that they face in that they could be found in breach and unable to continue but could have their situation recognised in law and be fined for their behaviour, as would happen in the European Commission through the infraction proceedings. We need to look at this again because we are not quite there yet.

Let me conclude with two points. First, this is a good Bill that does good things. I recognise the passion and the commitment of the Minister and indeed of my noble friend Lady Bloomfield. Both are passionate advocates of environmental protection and environmental reform, and I stand shoulder to shoulder with them. The points I have raised today I will take up in the future because I think that they need to be considered, and I would very much welcome an opportunity to discuss these matters further. I hope that Ministers will take them in the spirit in which they are given because I believe that this House is ready to be assured that our environmental credentials are second to none as we approach the glidepath to the COP 26 gathering and the other international gatherings that will take place on our soil. We have an opportunity to be leaders—let us embrace that.