Four big government defeats in the House of Lords could shape the future of environmental law
This article was written by Nicholas Jones, Paralegal.
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The Environment Bill’s journey through parliament had until last week been plain sailing, the government having comfortably resisted every change tabled by opposition MPs in the House of Commons.
Now, four highly-significant amendments approved by the House of Lords have rocked the boat. Whether the changes survive the Bill’s return to the commons over the coming months will have a major impact on the force and application of what the government has called ‘the most ambitious environmental programme of any country on earth’.
- Interim Targets
The first amendment makes interim targets legally binding. The Bill requires the Secretary of State to set both long-term targets (no less than 15 years) and interim targets (five years), in respect of at least four ‘priority areas’ (air quality, water, biodiversity, and resource efficiency and waste reduction), as well as separate legally-binding targets for particulate matter and species abundance. Previously, only long-term targets were to be legally binding. That distinction has now been removed, with the Lords’ amendment placing a duty on the Secretary of State to ‘ensure that interim targets are met’.
- Exemptions from the scope of the environmental policy statement
The Bill sets out how a statement of environmental principles will be applied by ministers from all departments when drafting policy. Before its arrival in the Lords, two broad areas of government were to be exempt from this requirement: the armed forces, defence and national security, on the one hand, and taxation, spending and resource allocation, on the other. By an extremely narrow margin of 184-182, the Lords voted to remove these exemptions.
- The independence of the Office for Environmental Protection
The Bill will create a new watchdog – the Office for Environmental Protection (OEP) – which is to have powers of enforcement. One point of controversy in the Bill had been clause 25, which stated that the Secretary of State ‘may issue guidance’ to which the OEP ‘must have regard [when] preparing its enforcement policy’. Many saw this provision as compromising the independence of the OEP, which risked becoming a watchdog with bark but no bite. The Lords swept this provision away and, crucially, replaced it with one that affirms the ‘complete discretion’ of the OEP in both its enforcement and budget-creation functions. The amendment passed comfortably, with five conservatives joining opposition and crossbench peers.
- Judicial remedies
The final amendment relates to the new form of litigation created by the Bill: ‘environmental review’. The OEP will be able to apply to the court for environmental review where it believes that a public authority, such as a government department, has failed to comply with environmental law. Prior to the Bill’s arrival in the Lords, the options available to the court where it upholds such an application for review were to be restricted. It could only grant a remedy where it was satisfied of two conditions. First, that the remedy would not cause ‘substantial hardship’ or ‘substantially prejudice’ any person other than the authority. Second, that the remedy would not be ‘detrimental to good administration’. The Lords voted to remove these restrictions and instead made them factors to which the court ‘must have regard’ when determining whether a remedy would be ‘in the interests of justice’.
The parliamentary tussling over the Environment Bill has been defined by two key areas of tension: the scope of the demands to be placed on the government, on the one hand, and the extent of external scrutiny, on the other.
The first two amendments fall into the first of these categories.
It is perhaps not overly cynical to suggest that the government’s resistance to interim targets being legally binding is at least partly rooted in self-preservation: why open yourself up to criticism for missing a target in the near future, when you could instead foist it onto whoever is in office 15 years from now? Similarly, the attempt to exempt certain departments from the scope of the environmental policy statement represents for many a lack of ambition. As one supporter of the amendment stated in the Lords:
‘the Bill and the climate crisis need to be taken with equal seriousness across the whole of government.’
What is clear in the case of both amendments is that opposition politicians want the government to put its money where its mouth is: if the Bill really is to be as ambitious as ministers argue, then it should contain tough challenges that the government is prepared to force itself to meet.
The final two amendments embody the debate around external scrutiny.
The ultimate force of this legislation may come to depend on whether or not its provisions are adequately enforceable. Critics of the government state that this cannot be achieved if the OEP is not fully independent, and if courts do not have free reign to grant remedies that incentivise compliance with environmental law. Both issues go directly to the question of scrutiny. Ultimately, would the government rather mark its own homework, or is it willing to submit itself to the complete oversight of external bodies?
What happens next
After the third and final reading of the Bill in the Lords, the draft legislation will eventually return to the House of Commons for consideration of the new amendments.
The Bill’s progression is playing out just weeks before the UK hosts COP26, which will be the first worldwide meeting of global leaders since the IPCC issued a ‘code red for humanity’ in August. The government will likely be keen to avoid the embarrassing optics that would come from rejecting these amendments in the run up to the conference. After all, it would not be a good look to make interim targets optional, just as Britain seeks to convince the rest of the world to drastically curb their own emissions.