Environment Bill — House of Lords, 2021-06-07
Topic: Environment
Jeffrey Rooker (Labour, Centre-left): My Lords, I intend to confine myself to governance issues. If the Bill is left as it is, it will not take long for the public to lose confidence in the protection and enhancement of the environment. I make no apology for reminding the House of an issue that I have raised several times before, regarding the governance gap on leaving the EU. The first of the latest two times was on 7 March 2018, during a debate on the EU withdrawal Bill, when I raised the issue of the EU Commission taking the United Kingdom to the ECJ on environmental issues on 34 occasions and winning on 30 of them; the other four remained in dispute. Both Labour and Tory Governments opposed the Commission, causing it to take action. If it had been left to the Government, we would not have had the benefit of the Commission’s upgrades to the UK environment. I did the same again on 2 July 2018, during a debate on the NERC Act 2006 report. It was the threat of infraction—that is, the EU financial fine—which stimulated the UK Government to act in the interests of a better and safer environment. I pointed out, in col. 412, that Defra was in control and "loves control"; it is part of the culture. It was the same when Defra was MAFF. I was in both, several years apart, and the culture has not gone away. I could also warn that Defra, as old MAFF, wanted to have the Food Standards Agency as an executive agency of MAFF The threat of infraction—a fine on the UK Government—has gone; we are, therefore, left with a gap. Anyone who disputes that should look at the opinion piece by Michael Gove published on 13 November 2017 when he was the Defra Secretary of State. This is an authored article, on GOV.UK, on the new independent body for environmental standards. I will give two quotes from it. He said: "Some of the mechanisms which have developed during our time in the EU which helpfully scrutinise the achievement of environmental targets and standards by Government will no longer exist in the same way, and principles which guide policy will have less scope and coverage than they do now. Without further action, there will be a governance gap. The environment won’t be protected as it should be from the unscrupulous, unprincipled or careless." He went on to forecast "a new, world-leading body to … hold the powerful to account. It will be independent of government, able to speak its mind freely." This Bill, with the office for environmental protection, does not do that I am not a lawyer, but before I read the note from the Bingham Centre for the Rule of Law on this Bill and the OEP I had worked it out. Now that I have read the detailed Bingham briefing, I can see how shoddy the proposal is. Bingham takes apart Clause 37, regarding the power of the OEP and the environmental review. On the principle of legality and remedies in breach of environmental law, the question is: "In plain English, if a public authority breaks the law, can it be brought to a court, and can the court correct the wrong?" The conclusion is that Clause 37(7) "does not satisfy the Rule of Law." An act of a public authority can be unlawful but the act "remains valid", so the unlawful environmental acts are "valid by default". This is the "‘new normal’ under clause 37(7)" As the Government’s Explanatory Notes to the Bill say, "the statement of non-compliance confirms that the court has found that the public authority in question has failed to comply with environmental law, it does not in itself invalidate the decision of the public authority in question." According to Bingham, this means that the ruling from a court "will have zero legal effect. What then is the point in an environmental review?" The remedy on damages in Clause 37(8) presents a problem. The Bingham conclusion is: "The lack of a remedy in damages combined with the inability of the OEP to impose fines weakens the ability of the OEP to provide effective sanctions for breach of environmental law." This introduces the novel "polluter doesn’t pay" principle Returning to Michael Gove’s promise of a world-leading body being independent of government, the Bingham conclusion is: "The OEP does not have an express statutory duty to be independent of the Government or of public authorities, nor does it have institutional guarantees of independence. The language of the Bill indicates the … OEP to be impartial, but not fully independent." In effect: "The ability of the Secretary of State to issue guidance on enforcement policy and enforcement functions opens up the real possibility of the Secretary of State issuing guidance on how the Secretary of State is to be investigated." This is preposterous. As Bingham says, this is "at odds with sound administrative practice and undermines the Rule of Law." The Defra Secretary of State owns the OEP lock, stock and barrel: "This lack of independence compromises the ability of the OEP to pursue effective remedies for breaches of environmental law." If there is any doubt that stronger powers are needed, the fact was published last week that, of 640 bathing sites in the UK, only 110 are judged to be excellent by the Environment Agency. UK bathing water was the worst in Europe in 2020. The only reason that it has improved in past decades is due to the Commission taking the UK to the European Court of Justice, which is where I started. This Bill needs big changes.