I thank noble Lords for their contributions and assure them that the Government are committed to establishing the OEP to effectively hold public authorities to account, and have provided for an enforcement framework which will allow it to do so in a manner appropriate to our domestic context.
I shall begin with Amendments 104 and 107A, tabled respectively by the noble Baroness, Lady Jones of Moulsecoomb, and my noble friend Lady McIntosh of Pickering. In our domestic legal system, provision for a system of fines is unnecessary because of the strict requirement for public authorities to comply with court judgments and the stronger legal remedies available. I will come back to this in a moment. Fines play an important role at the EU level, as the noble Lord, Lord Anderson, explained, because the Court of Justice of the European Union has no other tool by which to bring about compliance with its judgments. Unlike our courts, it does not have the ability to impose mandatory court orders directly on public authorities. If a member state does not comply, the Commission can only bring the case back to court some years later and seek a financial penalty against the member state.
Incidentally, financial penalties under the EU framework were pushed as a compliance mechanism by the UK Government when the UK was a member of the EU. Given the nature of the European framework, we felt that it was necessary at the time to ensure that no member state could simply ignore the judgments of the Court of Justice of the European Union.
By contrast, under our proposed framework, if a public authority took the extraordinary step of failing to comply with the stronger remedy of a binding court order, the OEP would be able to bring contempt of court proceedings. Being held in contempt would have serious implications and could not be ignored, as noble Lords know. There are clear requirements in the Ministerial Code for Ministers to comply with the law, including court orders. I emphasise this point. Having heard my noble friend Lord Cormack, I think that this may be an area that he has perhaps not fully understood. The prospect of a fine pales in comparison with the risk of being held in contempt of court.
I also note that the amendments would go further even than allowing the court to impose a fine where an earlier judgment had not been complied with. One amendment would grant a power to the OEP itself to impose fines, and the other would grant the court a power to issue fines, effectively as a punitive step. The Government consider that both of these options would be inappropriate. Amendment 104 would in effect allow the OEP to superimpose its own decisions in place of those made by authorities appointed by Parliament itself. The OEP would be able to prematurely sanction public authorities, without reference to the courts, and with no appeals mechanism through which this decision could then be challenged.
Incidentally, the European Commission cannot directly fine member states, public bodies, or private bodies for environmental infractions, as a number of noble Lords have implied. Only the Court of Justice of the European Union has this power, and only if a member state has failed to comply with an earlier judgment.
Additionally, Amendment 107A would grant the court a power to issue fines, effectively as a punitive step rather than to bring about compliance. This is not the role of environmental review or the OEP.
Turning to the amendments tabled by the noble Lord, Lord Anderson of Ipswich, I thank him for his conversations on this subject with myself and my officials. In answer to the noble Baroness, Lady Jones, I would be very keen to continue those discussions if he is willing, as I hope noble Lords will appreciate I have been throughout this process. Before I go into the specifics of his amendments, I will explain why we have designed the OEP’s enforcement framework in the way that we have, and why it is so important.
The OEP’s enforcement framework must be considered in the round. It delivers numerous benefits as an additional—not a replacement—route through which alleged instances of non-compliance will be addressed. Our proposals increase access to justice by allowing anyone who has been affected by, or is aware of, an alleged breach of environmental law by a public authority to make a complaint to the OEP free of charge. Notwithstanding the comments by the noble Baroness, Lady Jones, this matters, given the costs of action outside of this proposal and outside of this new system.
By liaising directly with public authorities to investigate and resolve alleged serious breaches of environmental law in a targeted manner, the OEP will be able to drive systemic environmental improvements. Wherever possible, this will be without the need to resort to costly and time-consuming litigation. In many ways, therefore, the OEP will be fulfilling a similar role to that carried out by the European Commission in the EU infractions process, but with a significantly wider remit and the ability to act directly against public authorities.
The vast majority of EU infraction cases are resolved in a similar way to how we expect the OEP’s enforcement framework to operate: through dialogue, not in front of the Court of Justice of the European Union. The cases taken by the EU Commission are also intended to drive systemic environmental improvements by clarifying the law and dealing with ongoing failures, and this is the role that we have in mind for the OEP. Our new framework will lead to better outcomes for complainants, the public and the environment. It is right that as many cases as possible are resolved through this route.
There has been a great deal of discussion of Clause 37(8) in this debate, but it must also be right that we have adopted an approach which ensures fairness and certainty in these provisions. This is entirely consistent with other forms of legal challenge in our domestic justice system, where, for instance, provision for strict judicial review time limits demonstrates that relying on judicial discretion alone is not sufficient.
Turning to the detail of Amendment 105, the court should be asked to examine issues only where the OEP has given the public authority adequate opportunity to respond. That is only right and appropriate. Active discussion with a view to resolving the issue would take place in the course of an investigation and through the service of an information notice. Where necessary, this would then be followed by a decision notice. Amendment 105 from the noble Lord, Lord Anderson, would therefore circumvent this process, limiting the benefits that this new system could deliver. Noble Lords will note that it would still be possible for the
OEP to put evidence to the court regarding actions by a public authority related to conduct described in a decision notice. The court would then have the flexibility to consider this in relation to remedies.
Turning to Amendment 106, the OEP’s enforcement framework will drive systemic environmental improvements and deliver better outcomes for the public and the environment. It will allow the OEP the time and space to resolve issues directly with public authorities through investigations and its notice processes. Litigation will, of course, sometimes be necessary, but as a last resort rather than as the default or the norm. This is entirely consistent with the approach taken in EU environmental infractions, which is focused on addressing ongoing non-compliance, not trying to overturn decisions years later that have been reasonably relied on by individuals. It is as a direct result of this extended enforcement process that some safeguards are required to avoid the negative effects of decisions being undone potentially many months after they have been taken. Clause 37(7) does this.
However, a statement of non-compliance is none the less an important means by which the court can clarify the law for future cases. Given that the court will have ruled on the correct interpretation of the law, this will ensure that public authorities avoid future breaches and will prevent any ongoing non-compliance, which is ultimately the aim of the OEP. The EU infractions process is also exactly that: it seeks to address ongoing non-compliance, rather than undo specific local decisions made years previously. We want the OEP to be a forward-looking organisation, driving better environmental outcomes for the future.
In response to comments made by the noble Baroness, Lady Jones, and others, I want also to reassure noble Lords that the existence of the statement of non-compliance does not in any way limit the granting of remedies by the court. A statement of non-compliance is not itself considered a remedy. Subject to the important protections in Clause 37(8), the court will have full discretion to grant normal judicial review remedies. This includes quashing orders, prohibiting orders, mandatory orders and declarations.
I hope that the noble Lord, Lord Anderson, is reassured that we have carefully considered how best to balance this provision to ensure that the OEP and environmental review will be able to drive meaningful environmental improvements, while also ensuring that there is not an open-ended ability to overturn decisions potentially years after they are made. As such, we do not believe that this amendment is necessary.
Turning to Amendment 107, environmental review by its nature allows time for information and decision notice stages. This will enable the court to make orders outside of the normal judicial review time limits. Judicial review time limits are to ensure certainty and provide a fair process that protects the rights of third parties who act reasonably on the decisions of public authorities. These very strict time limits are set out in the Civil Procedure Rules at Part 54. Rule 54.5 specifically provides that these time limits may not be extended, even by agreement between the parties. If judicial discretion alone were sufficient to protect fairness and ensure certainty, why, then, would these time limits be necessary?
The Government consider it entirely necessary to recognise the unique context in which environmental reviews will occur and protect third parties in this way, just as others did in the past when establishing the judicial review procedure in law. It is not a novel approach to protect such rights in legislation. Indeed, this provision is an extension of the position for existing challenges: under Section 31(6) of the Senior Courts Act 1981 and Sections 16(4) and (5) of the Tribunals, Courts and Enforcement Act 2007, the court has a discretion to refuse relief in such circumstances.
The protections in Clause 37(8) make it possible for the OEP to have a more collaborative, but potentially extended, process of investigation and notices, which will enable issues to be resolved more effectively in the interests of the public and the environment. But to be clear, it is also not the case that these safeguards will be triggered in all cases. Indeed, the Bill steers the OEP to prioritise cases with national implications, so individual local planning decisions affecting third parties are unlikely to be considered. The safeguards provided by Clause 37(8) will not be relevant to most cases that the OEP will pursue. A requirement to change future policy or how legislation is to be interpreted will not trigger the safeguard. After all, no-one is entitled to demand that government policy be fixed for ever more.
3.15 pm
To take an example, the OEP could bring an environmental review regarding an alleged breach by government of legally binding limit values for a pollutant. That example has already been given today. If the court had issued a statement of non-compliance, it could consider granting a mandatory order requiring the Government to develop a new plan in order to reduce pollutant levels. Although this may have some impact on third parties, such as the example given by the noble Lord, Lord Anderson, of a taxi business, there is no reason why this would amount to substantial hardship or prejudice. An individual or business must reasonably expect some changes in circumstances in an evolving regulatory environment, so such a case is different from the question of the status of an existing planning permission, where there is a greater legitimate expectation of certainty. As such, the court would be able to grant the necessary remedies.
Removing Clause 37(8), as proposed in the noble Lord’s amendment, could cause significant uncertainty for third parties. It is an essential component of this bespoke enforcement procedure, which I hope the noble Lord is persuaded will drive significant environmental improvement.
Finally, regarding Amendment 108, the power to apply directly to judicial review is intended to be supplementary to the OEP’s core enforcement mechanism. The Government recognise that there will be exceptional cases where it will be necessary for the OEP to seek a more urgent court judgment—for example, if serious damage would have already happened by the time that the normal enforcement procedure reached the court. However, it is important that this is reserved only for such exceptional cases. This amendment would cause uncertainty about the route that the OEP should take
in any given case and risk diverting cases away from a core framework that has the potential to drive systemic improvements in the longer term.
Before I end, I will directly address the challenge laid down by the noble Lord, Lord Anderson. Although I do not have a copy of the letter in front of me and therefore cannot repeat it word for word, I assure him that it is the Government’s view that the OEP’s complaints and enforcement functions would not affect the rights of other persons to bring legal challenges against public authorities by way of a judicial review. However, it is within the court’s jurisdiction to hear and decide cases as it sees fit. I hope that addresses his final challenge. I hope this reassures all noble Lords, and I therefore beg them not to press their amendments.