My Lords, I am grateful for the opportunity to take these amendments before the dinner break. Like other nobles Lords, I will be as brief as I can.
The purpose of these cross-party Amendments, 26, 27 and 28, in the now-familiar dentistry metaphor, is to provide the OEP with a working set of teeth. They do not give enforcement powers to the OEP itself, they do not allow it to claim damages and they do not replicate the fining power that gave the European Commission the big stick that it used so effectively to concentrate minds. All they do is allow the High Court its usual discretion to enforce the environmental duties of public bodies by the grant of appropriate remedies. That is a modest aim but also, I suggest, a necessary one if the OEP is to achieve even baseline credibility, whether at home or internationally, as an enforcement body.
The “key facts” note on the OEP, circulated earlier today, correctly states that the OEP will be able to bring legal proceedings against public authorities but
is less forthcoming about when it can do that and to what purpose. Three other key facts, not dwelled upon in the Government’s note, lie behind these three amendments. First, the OEP is unique among interested persons and bodies in being disqualified from bringing proceedings for judicial review, save in urgent cases. My Amendment 28 seeks to correct that.
Secondly, the bespoke process of environmental review, designed for the OEP to keep public bodies up to the mark, is available only after each individual breach of duty and each repetition of such a breach has undergone the cumbersome pre-litigation process set out in Clauses 32 to 37. My Amendment 26 would introduce greater flexibility and indeed speed into that process.
Thirdly and most significantly, Clause 38(8), the subject of my Amendment 27, introduces to environmental review a presumption, unique I think in our law, against the grant of any meaningful remedy. Victory for the OEP is rewarded only by a statement of non-compliance, which has no legal effect and which the Minister accepted in Committee is “not … considered a remedy”.
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For a remedy to be granted, the court must prove a formidable series of negatives: that its grant would not be likely to cause substantial hardship or prejudice to any person, whether before the court or otherwise; and that a remedy would not be detrimental to good administration. Where such competing interests exist, which in big or difficult cases they are bound to, as was illustrated by examples given in Committee, the High Court is simply neutered, signalling to public authorities and developers alike that the environmental duties of public bodies cannot be enforced by the OEP when there may be private interests that could suffer. Thus, in our previous debate, the noble and learned Lord, Lord Hope, spoke of the need to retain in this field the flexibility of judicial review, and the noble and learned Lord, Lord Mackay of Clashfern, said that this clause places environmental law on a grade below other laws, so that, as he put it, although you fail to comply with it, you can still be right.
I am grateful to the Minister, the Bill team and the Secretary of State for our repeated discussions. They registered their concern about the possible bypassing of short judicial review time limits. Perhaps that is to exaggerate the promptness of judicial review, for which the time limit starts to run only after the completion of a long administrative process, but in any event, the point of environmental review, as Clause 38(7) firmly indicates, is not to duplicate judicial review but to complement it by providing a means to address systemic cases in respect of which judicial review time limits are not appropriate. The OEP is stepping into the shoes of the European Commission, which was not hamstrung by time limits but which could still seek meaningful remedies from the European court. One wonders why our own courts should be barred from granting meaningful remedies to the OEP.
However, we have responded to the Government’s concerns by making Amendment 27 as easy as possible for them to accept. Now written on to its face is the liberty of the court to refuse a remedy when the interests of third parties or of good administration
would render this unjust. Further flexibility will be provided by the Judicial Review and Courts Bill in the shape of suspended and prospective-only quashing orders, remedies which, by the first and unobjectionable part of Clause 38(8), will be read over into environmental review.
The OEP, in seeking relief, and the courts in deciding whether or not to grant it, can be counted upon to weigh the competing considerations and to act responsibly. I think the Minister well understands—whatever he is required to say from the Dispatch Box—that the Government cannot credibly claim to have independent and effective safeguards while protecting themselves from being held to account by the very body established for the purpose. The Minister continues to offer discussions and I thank him for that, but if those discussions are to be productive, I sense that one of two things will have to happen this evening: that he undertakes to think again, or your Lordships encourage him to. With that in mind, I propose to test the opinion of the House, if necessary, on Amendment 27.