My Lords, when amendments are supported by noble Lords of the calibre of the noble Lord, Lord Anderson, and the noble and learned Lord, Lord Thomas, a renowned scientist and environmentalist in the shape of the noble Lord, Lord Krebs, and a former Minister—the noble Lord, Lord Duncan of Springbank—if I were the Minister, I would roll over and accept them. I hope he will do just that. I cannot add to the lucid case made in support of Amendments 105 to 108 by those noble Lords I have mentioned, other than, in layman’s terms, to add my voice of concern about the proposed restrictions on judicial discretion to grant remedies when it is found that there has been a breach of environmental law on an environmental review and the limitations on the OEP’s powers to bring judicial review proceedings.
The proposed statement of non-compliance is risible, since the public body can publish a response but carry on regardless, with whatever it has done wrongly remaining valid and in place. This is not a toothless remedy; it is no remedy at all and will bring the OEP immediately into disrepute. To make matters worse, a judge cannot issue a stronger remedy if it would
“be likely to cause substantial hardship to, or substantially prejudice the rights of, any person”
or
“be detrimental to good administration.”
We have heard cases from across the environmental spectrum from previous speakers. Can the Minister tell the Committee how this provision can possibly work, as there is bound to be an individual or group who could be shown to have suffered some adverse impact? It is called life, I think.
Environmental review is supposed to complement rather than replace judicial review, but the Bill allows the OEP to use judicial review only where an urgency condition has been met:
“to prevent or mitigate serious damage to the natural environment or to human health.”
Other similar bodies have access to judicial review at their discretion, and that cannot be denied to the OEP without it becoming ineffective in its enforcement role.
Amendments 106 to 108 would enable the OEP to exercise at least some effective powers to hold government and public bodies to account for compliance with environmental law. Personally, I would also give the OEP whacking great powers, as outlined in Amendment 105 from the noble Baroness, Lady Jones of Moulsecoomb. There is nothing like an eye-watering fine of the scale that the European Commission used to apply as a last resort to change the mind of a government department or an agency that has gone off-piste.
I have chaired a regulatory body that attempted to regulate government bodies and the Government themselves, and I tell the Committee that it is not easy. If you do it with rigour and toughness, the Government hate you and take revenge. If you do it in a toothless way, the public lose confidence in you and take revenge. It is difficult enough with a full set of tools in the toolkit. Unless these amendments are passed, the OEP’s toolkit will be significantly bare.