Environment Bill

Lord Mackay of Clashfern Excerpts

Committee stage
Wednesday 30th June 2021 Lords Chamber

[Lord Mackay of Clashfern (Con)]

My Lords, I support the amendments and support in detail all that has been said by noble Lords, including the noble and learned Lord, Lord Thomas. I want to ask a rather fundamental question. The environmental review can be taken on only where the OEP considers that, on the balance of probability,

“the authority has failed to comply with environmental law, and … it considers that the failure”

is “serious.” That is the start: a failure

“to comply with environmental law.”

Subsection (6) states:

“If the court finds that the authority has failed to comply with environmental law, it must make a statement to that effect (a ‘statement of non-compliance’).”


That is to say that the court has held that the authority in question

“has failed to comply with environmental law”.

It goes on to state:

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


What does that mean? That means that the conduct in question cannot be a breach of the law. It is a failure of environmental law, yet it is not a breach of the law. Is that another way of saying that environmental law is not a law at all, and that planning law must prevail? Is that really what this is saying, or can my noble friend explain to me how you can have a law which has been breached yet the conduct is not regarded as improper?

It is a simple question that supports all these amendments, if answered properly. There is 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. That does not accord with our understanding of law—certainly not mine for a considerable period. I do not see how it can work that you can have a piece of legislation that describes something as law—environmental law—yet it is not law that, where you breach it, renders your conduct wrong.

[Lord Cormack (Con)]

My Lords, it is a delight to follow my noble and learned friend Lord Mackay of Clashfern, who is in many ways the embodiment of wisdom in your Lordships’ House. How good it is to have him back with us and speaking as vigorously and to the point as he always does.

I cannot begin to rival the expertise or knowledge of the noble and learned Lords who have spoken, but shall give my noble friend the Minister a secular analogy. When we enter this Chamber from the Prince’s Chamber, we have in front of us that great classical sculpture by John Gibson of Queen Victoria. It is flanked on either side by the figures of Justice and Mercy. The figure of Justice holds in her hands, as the noble Lord, Lord Anderson, reminded us earlier, the sword and the scales.

Would my noble friend Lord Goldsmith seriously think, as he entered the Chamber, of removing that sword and those scales? Because that, metaphorically, is what he is proposing to do this afternoon if he does not accept the spirit of these amendments. It is palpably absurd—I refer to the interesting contribution of the noble Lord, Lord Rooker—to have an Environment Bill that has as one of its slogans, “The polluter need not pay”. It is absurd. Can my noble friend not recognise that absurdity?

I have said before in these debates that it is essential that an environmental Bill should command the support of Members in all parts of your Lordships’ House, particularly one that is meant to stand the test of not just some time but generations. We cannot have a Bill enacted that, in effect, does what my noble and learned friend Lord Mackay has just said and contradicts one of the fundamentals of English law.

I hope that my noble friend Lord Goldsmith will do what I urged him to do when speaking to an amendment on Monday. I said that because it was so important that the Bill should command the support of your Lordships in all parts of the House, he should convene some sort of round table and talk to us all. There is an answer to all these conundrums and problems that we are highlighting, because we all support the basic premise of the Bill. However, if we support that premise and intention, we cannot allow the Bill to go on to the statute book so fundamentally flawed as it is at the moment. So I say to him again, “Please talk to those of us who wish you well, who wish the Bill well, but who can never lend support on Report to a Bill that is so riddled with absurdity”.