Environment Bill — House of Lords, 2021-06-07
Topic: Environment
David Anderson (Crossbench, Unknown): Many noble Lords, including my noble friends Lord Cameron of Dillington and Lady Boycott, have already spoken of the limited independence of the OEP, citing issues of funding and the process for future appointments. The Defra family, as it has been called, is certainly a close one. What stands out for me is Defra’s power in Clause 24 to issue guidance to the OEP on how the OEP should enforce environmental law against Defra and other public authorities. As with other government amendments introduced in the Commons—I will come back to those—it is hard to avoid the sense of second thoughts being had and wings being clipped I will focus on a more technical but equally important issue: the enforcement powers of the OEP in Clauses 30 to 40 of the Bill. I venture to do so based on some experience of appearing in English and European courts for environmental activists, for Defra and, I admit with trepidation to the Minister, most recently for Heathrow Airport. As currently written, the new remedies risk being less effective than what we had, imperfect though the EU’s procedures were, and will certainly be less effective than they could or ought to be The investigatory stage will be long. Once the internal processes of the public authority have been exhausted, the OEP may conduct an investigation, conclude that there has been a serious failure to comply with environmental law and issue a decision notice, which may include non-binding recommendations. There may be cases that, given good will on all sides, lead to useful results, but they will not be the hardest cases—those in which a public authority has taken a decision that is thought to contravene environmental law. A recommendation from the OEP can neither undo a decision once taken nor require it to be revisited because of the well-established principle that the decision of a public authority affecting the rights of others cannot be altered or withdrawn—even if the decision-maker wanted it to be—in the absence of an express statutory power or the order of a court. Of course, the OEP, resources permitting, can apply to a court for an environmental review, but that procedure is itself fatally limited for two interlocking reasons First, it cannot even be invoked until the lengthy prelude has been completed, by which time the action complained of is likely to be well in the past. An investigation stage that cannot deal with unlawful decisions must be endured before the court that can deal with them is brought in, rendering the investigation not only pointless but counterproductive. I hope that the Minister, to whom I am grateful for the conversations that he mentioned—I think we have another one tomorrow—will consider introducing a shortcut procedure for urgent cases Secondly, the remedies that the court can grant on environmental review are remarkably restrictive. I do not mean just the absence of an EU-style power to fine, which, in my not-very-glamorous experience of defending against the European Commission in wastewater cases, was a background factor that operated keenly on the mind of the Government. I mean Clause 37(8), already referred to by the noble Lord, Lord Oates, which allows a decision of a public authority to be quashed by the court only if it "would not … be detrimental to good administration" and "would not … be likely to cause substantial hardship to, or substantially prejudice the rights of, any person" This looks a bit like a prototype for the alarming proposal currently being consulted on by the Ministry of Justice to introduce a statutory presumption that the quashing remedy in administrative law should operate only with prospective effect. As with that proposal, Clause 37(8) will tend to leave unlawful decisions undisturbed, remove or reduce the incentive to challenge unlawful decisions and elevate private and bureaucratic interests over public interests—that is, the interest in a clean environment and, as the Bingham Centre explained in its briefing for this debate, the rule of law. Finally, given the severe limitations on environmental review, much weight will rest on judicial review. I know that the Minister shares my admiration for James Thornton and his organisation ClientEarth, which has enforced environmental standards through the courts in a number of countries—including here, where it successfully held the Government to account for their failure to require action from 45 local authorities with illegal levels of air pollution. I would be grateful if the Minister could answer two questions. First, why was this Bill amended in the Commons—I do not for a moment suggest the initiative was his—to limit the OEP’s power to bring judicial review proceedings to urgent cases only? Secondly, can he undertake that the prolonged and, as I have explained, largely toothless processes of OEP investigation and environmental review will not be advanced by Defra in the courts as alternative remedies that could justify the refusal to individuals of permission to apply for judicial review There is much that is sound, even admirable, in this Bill, but aspirations are little use without the ability to ensure that they are realised. I am reminded of the words of our last Advocate-General in the European court, Eleanor Sharpston, who once wrote that German environmental law, which looked good but was hard to enforce in the courts, was like "a Ferrari with its doors locked shut" As the Prime Minister said to Tom McTague of The Atlantic in a piece published this morning: "People live by narrative … Human beings are creatures of the imagination." Those are perceptive words, and the vision of a powerful green watchdog holding the Government fearlessly to account makes for a good narrative. However, to usher into law a Potemkin watchdog and judicial discretions that are unnecessarily constrained would be a dereliction of our duty. Imagination must be backed up by reality, and this House can—and, I hope, will—help to achieve that.