Environment Bill — House of Lords, 2021-06-28
Topic: Environment
James Hope (Crossbench, Unknown): My Lords, I hope I can be heard. Amendment 81A is a probing amendment, for reasons that I hope to explain. Clause 19 provides for the making of statements about Bills containing new environment law before the Bill’s Second Reading. According to paragraph 22 of the Explanatory Notes, these are to be statements setting out "the effect" of the new primary environmental law on existing levels of environmental protection provided for by environmental law, but the wording of the clause does not quite say that. All it requires is a statement by the Minister that the Bill contains a provision which, if enacted, would be environmental law and would not have the effect of reducing the level of protection provided for under existing environmental law, or that the Minister is unable to make that statement. There the matter lies. How great the reduction would be and in what respects, if he or she is unable to make the statement, is another matter, which the clause does not mention or require to be considered A requirement of the limited kind that this clause describes seems to be breaking new ground, although something similar is to be found in Section 19 of the Human Rights Act 1998, which requires Ministers to make a statement of compatibility. That provision was seen, when the Human Rights Bill was introduced, to serve three purposes. First, it would have the salutary effect of focusing the Government’s mind on the question of whether the proposed legislation would be compatible with the European Convention on Human Rights. Secondly, it would provide information to Members of Parliament which might be relevant to their debates and discussions. Thirdly, it might affect the judicial interpretation of any legislation that was passed The third purpose was soon negatived when the Law Lords sitting in this House made it clear that it was for the courts and not a Minister to say whether the legislation would be compatible with the convention. The second does not seem to have been borne out in practice, as I cannot recall any case where the significance or otherwise of the Minister’s statement has been debated in this House. That may be because it has no legal significance. I hope that the first salutary purpose is still there, and that these statements, which appear without fail in every Bill, are not a mere formality because the matter has been considered So the question is: what is the purpose of the requirement in Clause 19? It cannot bind the courts, as it is for them and not the Minister to say whether the provision would be environmental law, should that issue ever arise in legal proceedings. I can see some prospect of its having the salutary effect of requiring the Government to address the question, focused on in Clause 19(3), of whether the level of environmental protection provided by existing environmental law would be reduced. That would be a good thing and very welcome, but do we need a provision in this Bill for that to happen? What would happen if, as it turns out, the statement the Minister made was wrong, if the Bill is amended in a way that might affect what the Minister said or if the Minister is unable to make the statement? The clause does not address these issues at all. If, on the other hand, the making of a statement of the kind referred to in Clause 19(4) is to provide an opportunity for debate, what purpose would that debate have if the Government nevertheless wish the House to proceed with the Bill and will enforce their wish? The clause does not provide for any kind of sanction or remedy. It can be said that there is some value in drawing the matter to the attention of the House, but does it really add anything to what would be likely to happen anyway when the Bill came under scrutiny There is one other point worth mentioning. The phrase "existing environmental law" is defined in Clause 19(8), in relation to a statement under the clause, as meaning "environmental law existing at the time that the Bill … is introduced into the House" However, that definition does not say what it is or where it is to be found. For that purpose, one has to go to Clause 45. The very broad definition that this clause provides is "any legislative provision … that … is mainly concerned with environmental protection"— which, for this purpose, includes devolved legislative provisions as well This is quite a package. It is unlike Section 19 of the Human Rights Act, where the convention itself and its precisely grouped surrounding case law is the point of reference. Given the extensive legislative background against which the Bill is likely to have been drafted, it may be quite difficult for a Minister to make such a statement with any conviction that everything has been turned over correctly and would stand up to scrutiny. That is why it might be wiser, to avoid any misunderstanding and any potential mishaps due to the difficulty of searching the ever-expanding reach of legislation in this field, to make it clear that the purpose of the clause is limited to what is indicated in my amendment In any event, it would be helpful if the Minister were to make it clear, for the assistance of all those to whose functions it is directed, what exactly the purpose is of this clause. I beg to move.