Environment Bill

Lord Hope of Craighead Excerpts

Committee stage
Wednesday 30th June 2021 Lords Chamber

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My Lords, the noble Lord, Lord Blunkett, has withdrawn, so I call the noble and learned Lord, Lord Hope of Craighead.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