My Lords, it is a great please to follow my noble and learned friend Lord Thomas of Cwmgiedd. I have put my name to Amendments 105, 106, 107 and 108, together with my noble friend Lord Anderson of Ipswich, my noble and learned friend Lord Thomas of Cwmgiedd and the noble Lord, Lord Duncan of Springbank. As a mere lay man on legal matters, I have little to add to the points made so beautifully by my noble friend and my noble and learned friend. However, it would be hard to argue against the view that the OEP, if it is to be an effective enforcement body, needs to be able to wield a big stick, even if the stick is rarely used. As it stands, the Bill gives the OEP a stick more akin to a matchstick than a knobkerrie, cudgel or shillelagh.
I am very grateful to the members of the Defra Bill team for having spent two sessions with my noble friend Lord Anderson and me trying to explain why Clause 37(8) biases the scales of justice against protecting
the environment and in favour of commercial interests that might harm it. Three arguments were put forward. First, environmental review will take some time to reach the court stage as it passes through the two earlier stages of an information notice and a decision notice. Therefore, a third party may have already committed a great deal of resource to a project before it comes to court and it would be then unfair to stop the project in its tracks. Secondly, it was said that the OEP has wider powers than those covered by the European Commission and court and therefore needs to have its teeth blunted. Thirdly, in some cases, for instance planning approvals, giving environmental protection too much weight might cut across other government priorities.
I do not find these arguments at all persuasive. For instance, the argument that the environmental review process is so slow that a third party could be heavily committed begs the question of whether the design of the whole process needs to be reconsidered, as Amendment 108 proposes, rather than using Clause 37(8) as a sticking plaster to rectify the problem. As it stands, it is a bit like a manufacturer making a chair with legs that are too long and then selling it with a requirement that the customer cuts the legs down before use.
Defra officials have also produced a very helpful note summarising their arguments for this part of the Bill, as the noble Lord, Lord Anderson, referred to a few minutes ago. The note makes it clear that one of the Government’s concerns, perhaps even a major concern, is that the OEP might get in the way of the planning system. My noble friend Lady Boycott referred in earlier debates to instances where housing developments could cause serious harm to valuable habitats. Perhaps a powerful OEP would be able to discourage or stop these developments—but if it did, would that be a bad thing? It certainly would not be for the species that depend on those habitats for their survival.
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It is not uncommon for developers or individuals to face financial consequences in the form of fines for environmental harms, such as cutting down trees that have tree preservation orders, or for failing to carry out due diligence, such as proper environmental impact assessments. Clause 37(8) seems to go too far in protecting public authorities from failing to carry out due diligence, with consequent adverse effects on third parties. As it stands, who will bear the burden of bad decisions? The environment that the Bill claims to protect.
As others have explained, Amendments 105, 106 and 108 also seek to strengthen the OEP’s hand by increasing the efficiency of process, removing the oddity that non-compliance does not affect the validity of an action, and broadening the conditions under which the OEP can seek judicial review. Amendment 104 in the name of the noble Baroness, Lady Jones of Moulsecoomb, and Amendment 107A in the name of the noble Baroness, Lady McIntosh of Pickering, introduce the option of financial penalties. In Monday’s debate, the noble Lord, Lord Rooker, was most eloquent in describing how the threat of fines by the European court galvanised the Government into action. I realise that that may be a step too far, but Amendments 105 to 108 are much more modest and should surely be
accepted by the Government if they are serious about protecting the environment. If the Bill is not amended, the OEP will be a bit like a contestant entering a marathon with their shoelaces tied together.