My Lords, first, I am grateful to the noble Lady, Baroness Jones of Moulsecoomb, for tabling Amendment 104. It enables us to have a discussion about what penalties are appropriate to ensure compliance with environmental law and to ensure that breaches are dealt with appropriately.
We agree that, as the Bill is currently worded, issuing decision notices has nothing like the impact that we previously enjoyed in the EU, whereby Governments could incur substantial fines. As the Bill stands, decision notices are not binding and it is not clear that these would be an effective way in which to remedy failures to comply with environmental law. We believe that the OEP should have much broader powers to make judgments, case by case, about what an appropriate remedy should be, including making amends and repairs and, in some cases, paying a financial penalty. I rather liked the rather creative proposal of the noble Baroness, Lady Jones, that the revenue from those fines could then go to the NHS.
A more substantial point about financial penalties is made in the amendment of the noble Baroness, Lady McIntosh. She gave an excellent insight into why these are necessary. We also agree with her that these decisions need to be enforceable and to send a clear message that would dissuade other public bodies from similarly breaching the law. The remedy should also require the public body to make a public declaration of the steps that it will take to put the matter right.
I know that the Government have consistently argued that financial penalties are not appropriate within the UK, as that would simply transfer money from one government pot of money to another. But we have to face the fact that it was a considerable deterrent in EU law and that nothing yet proposed in this Bill has anything like the same deterrent effect. As the noble Lord, Lord Anderson, said, penalty fines concentrate minds. Meanwhile, he and other noble Lords have all, in a powerfully co-ordinated way, taken apart the judicial processes in the Bill and exposed their weaknesses. They have made the case much better than I ever could. I am grateful to the Bingham Centre for the Rule of Law and the legal analysis offered from ClientEarth for setting out in some detail the failings in the judicial clauses of the Bill.
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How can Clauses 37(7) and 37(8) be allowed to remain in the Bill? How can we sign up to the premise that a statement of non-compliance issued by a court does not affect the validity of the conduct in the first place? This is a contradiction of all legal processes, which presume that if the judgment goes against you then you are in the wrong. It introduces an anomaly of the unlawful act now becoming lawful, and as the
noble and learned Lord, Lord Mackay, said, it is almost as though environmental law is considered to be a grade below other laws.
As noble Lords have said, the caveats in Clause 37(8), that a remedy cannot be granted if it would cause substantial hardship to any person or would be detrimental to good administration, make a mockery of any judgment. The noble Lord, Lord Anderson, provided some colourful examples illustrating why this provision is a nonsense, and my noble friend Lord Rooker similarly gave vivid examples of the farce in which court decisions could be ignored and any damage to the environment could be allowed to proceed regardless. It takes away the court’s discretion in determining what is fair and just in a particular case and renders the environmental review process largely ineffective. As the noble and learned Lord, Lord Thomas, made clear, the Bill as worded impedes justice. Courts and judges are routinely expected to balance interests and exercise discretion. The Bill takes away this discretion—a point also powerfully made by the noble and learned Lord, Lord Hope.
Also, as has been said, this introduces a “polluter doesn’t pay” principle into environmental law. The noble Lord, Lord Krebs, demolished the rather unconvincing arguments already put forward by the Government as to why these caveats might be necessary. I am grateful to the ClientEarth legal advice that draws our attention to the impact assessment, which concludes that one of the advantages of these clauses will be:
“a reduction in third-party Judicial Reviews resulting in cost savings on legal proceedings by public authorities”.
In other words, this is all about saving money, not about making good law.
We also very much support Amendment 105, tabled by the noble Lord, Lord Anderson, which would allow the OEP to apply for an environmental review in relation to multiple instances of alleged misconduct where the incidences are similar or related. This makes perfect sense and would enable the OEP to be more agile and efficient. It would also ensure that cases could be demonstrated to be serious, so that small but systemic breaches could be bundled up to make the case for an environmental review.
We very much support the amendments tabled by the noble Lord, Lord Anderson, today. I know that the Minister has been in discussion with the noble Lord and with other noble Lords. I hope very much that these discussions will continue and find a way to resolve what is a completely unacceptable wording in its current form. As my noble friend Lady Young of Old Scone said, given the weight of argument against it, if the Minister has any sense, he will roll over now and accept the amendments. If this cannot be resolved at this stage, we give the Minister our absolute assurance that we will follow through with these amendments at the next stage of the Bill.