Current Issues in Environmental Law: Climate Change and the Environment Bill – Part 1 - Webinar

[00:00:00] Speaker 1: Well good morning everyone. Welcome to Landmark Chamber's webinar, the first in our series on current issues and environmental law. This series is looking at issues of both law and policy and in particular will consider over a few weeks key provisions of the environmental bill which is currently on hold while Parliament adapts to the current difficult circumstances but nonetheless must be in place before we end the transition period with the EU. Today we'll be covering recent climate change issues and two governance issues arising from part one of the bill. We're delighted to see so many people joining us today and we hope you'll find what we have to say useful and informative. I'm David Elvin, I'll be chairing the seminar today and giving the third of the papers and I'm joined today by my colleagues Tim Bewley QC and our guest speaker Professor Liz Fisher who's Professor of Environmental Law at the University of Oxford and I'll formally introduce her in a moment. Just a couple of housekeeping matters before we start. Please note that your microphones are automatically muted so you don't need to adjust your local settings. We welcome very much questions on the papers that we're giving. Please submit your questions using the Q&A control on your screen which will be found either at the top or the bottom depending on your IT. We will endeavour to answer questions at the end of the session, that is to say following my presentation. If we can't do so and run out of time then we'll try and deal with some some of them also by following them up after the event with you. If you lose your connection at any stage during the webinar please just click on again using the link that you were sent to begin with. So let me introduce Liz Fisher briefly. Liz who we welcome to this webinar is the Professor of Environmental Law at the University of Oxford and a Fellow of Corpus Christi College. She was instrumental in setting up environmental law as both a graduate and undergraduate course at Oxford and her eminence needs no repetition from me but just to note she's the general editor of the Journal of Environmental Law and also has a key role in the Oxford Journal of Legal Studies. You can get her CV from her webpage and I just note in connection with the papers that Tim and I will be giving shortly is she's just published an article called Executive Environmental Law in the Modern Law Review which deals with a number of the governance issues, admittedly in the context of the previous version of the bill but a lot of what she has to say repays reading and indeed you'll hear some of the comments that she makes echoed in our papers. Thank you. Liz, over to you. [00:03:00] Liz Fisher: Thank you very much. So being given this title climate change after plan B. A couple of weeks ago I did a school session on the plan B case with a group of school students and a couple of them in talking about the case said well you know climate change is now addressed because of this wonderful court case and I think that's a common issue that we have a common perception that we have with these court cases that somehow they have resolved the point of climate change and as you'll see in my presentation you can see a picture of a magic wand and we have a perception that these cases will in a sense solve the problem and what I want to do in my presentation is show while these cases represent a new legal business as usual they do not represent magic wands and I'm going to do that by first of all saying a little bit about climate change second of all to say a little bit about the kind of cases that we're seeing emerging across the world then I want to give an example of three different cases that have been recently litigated one in the US one in Australia and finally plan B earth and then I want to come up with some conclusions um can I just check because I can't actually see my slides whether um it's working um I'm just [00:04:23] Speaker 1: checking Liz Liz it's David I'm going to butt in we will control the slides for you just just say next slide and we'll okay everybody else can see them thank you okay fantastic I can't [00:04:34] Liz Fisher: see them but that's fine I can memorize them um so if I could move to the next slide um which is talking about climate change and on that slide you will see two photos one photo is of Canberra which is the capital of Australia on this new year's day at noon in 35 degree heat now if anyone has ever been to Canberra what it usually looks like is the sun is shining and you need sunglasses now the reason why it looks like that on that day is because of the bushfires um and the photo next to it which I thought was very poignant in many cases um is from the museum of Australia saying well actually you cannot go into the garden of Australian dreams because of the air quality and I think that represents an important feature of climate changes climate change is a new environmental reality which concerns a whole series of changing environmental conditions not just to do with the climate and changes in temperature but to do a sea level rise increase bushfires etc and that is going to cause problems for a wide range of people in society now the second feature of climate change that we have to have regard to is what um the academics call polycentricity and what I mean by this is that there are a range of different legal actors that are causing climate change and are going to be affected by it now from the perspective of legal analysis this is quite complicated um to think about because we are often used to in law thinking about relationships between two parties or maybe three parties but not much more the third challenge in climate change and thinking about climate change from a legal perspective is trying to assess its impact the actual physics of climate change is incredibly well understood we also have a pretty robust understanding of what has happened in the past where it is challenging is assessing what is happening in the future um and what kind of changes we are going to see and then the final thing to note about climate change is ultimately it also involves value choices within a society of how we want to live what we think is fair and what we think is appropriate so climate change as a problem is quite a distinctive type of legal problem and in that regard along with um Eloise Scottford and Emily Barrett we've described climate change as legally disruptive David next slide now there are lots of different ways this legal um disruption manifests itself but one of the the most obvious is has been in the dramatic rise in case law um before courts around the world they now number in the many thousands um and in the middle of that slide you will see a link to the Sabin Center for Climate Law at Columbia University they keep a kind of running a sort of record of different cases from around the world now um again Scottford Barrett and I in analyzing this case law a couple of years ago categorized this case as falling into three different categories the first set of cases raise issues about whether even climate change is justiciable before the court or whether the courts have jurisdiction over climate change issues and and really in many ways these are the first generation or the more high profile climate change cases the second set of cases are those which really involve a recognition okay climate change is legally relevant and how do we recap craft legal doctrine to take into account climate change do we need to do different forms of legal analysis and then the third category and this is really the category that plan b earth falls into is where legislation creates obligations around climate change or where um there is a regulatory regime designed to address climate change for example emission trading schemes and and they are raising issues which are far more to do with the legal operation of those obligations now one thing to note before I go on to looking at some of these cases is that the role of the courts in these cases are really two different overlapping roles one is a form of dispute resolution so what we see in many of these cases are legal disputes about well what does the law actually require in relation to this new problem but there is also a role for the court in um um expository justice what do we mean by that what we mean is creating a new form of legal certainty and stability in light of the legal uncertainty created by climate change now one thing to note here is often climate change is talked about as being political and climate change cases as political and the first case I'm going to talk about would be seen in that category but I think it's important to recognize that climate change is not just a political issue it is a very real legal issue for the issues that I've highlighted um David next screen please um so the first case I'd like to talk about and you may have seen reference to this in the press is the case of Juliana and the United States which the Ninth Circuit um Court of Appeal decided in late January of this year now this is a case which I think is um stretches legal imagination the argument of um the plaintiffs who were a group of children was that the failure of the US government writ large to do anything in relation to climate change as well as encourage the use of activities where which involved climate um greenhouse gases was against their constitutional right to a clean environment so this is quite a dramatic case um the picture of the t-shirt is a picture from um a t-shirt that they were selling as part of the campaign now I think what's interesting was the conclusion of the majority of the court so the court concluded first of all that these um plaintiffs actually had standing that was one of the issues that was litigated but they concluded that they did have standing they did the court also made very clear in no uncertain terms the seriousness of climate change as a problem and the risks that it presented to the US and its population but the court concluded that there was no remedy that they could give to redress the situation and much of that was to do with the way the case was framed against the government writ large there was no particular decision being challenged it was general action and that made it very difficult for the court and the court's argument is as an article three court there was no effective remedy that they could give now that case again currently on appeal but but that gives you a feeling for a case where these issues about jurisdiction of the court come up okay um david next slide please the second case i want to talk about is a case called um gloucester resources from the new south wales land and environment court in australia from february of 2019 now this is a case where what we can see is a court recrafting legal doctrine in light of um climate change so the issue here was the planning permission for a large open cut coal mine the case itself is an actual fact what is known as a merits review so it's not just on a question of law it is on the merits so though with that said the merits are assessed whether there has been compliance with the law and in particular compliance with the laws in new south wales on environmental assessment now the judgment if you feel like reading it is 78 000 words long it doesn't just talk about climate change it talks about much else aside but when it came to climate change and the assessment of climate change the question for the court is well how do you think about climate change and the legal duty to assess environmental impacts and here i think it's a couple of interesting points to note first of all um the an argument of the coal mine was to say oh well someone else will you know deal with the impacts and the court said no there is no offsetting of the impacts the climate change impacts of this project um as part of this application so we we can't take that into account and i think that you can say well that legally makes sense um the court also took into account scope three emissions something which is quite common in court cases across the world um and the court also one of the arguments that has been risen often in these assessment cases about climate change is well if we don't build this coal mine someone else will build a coal mine the kind of market substitution or the carbon leakage argument and the court again said well that's there's really no proof of that in terms of assessment and the focus is on this project and then the final bit of the analysis to focus on which is particularly interesting is to say well why should this project be given permission or not given permission compared to any other project and that is where the court took into account the other adverse environmental impacts um to decline permission uh david next slide please and that brings me in a very long and winding way um to the case of plan b earth which i'm sure all of you have come across it got a lot of coverage in in the press um although admittedly perhaps not the finer details of the planning act 2008 so the plan b earth case is a really really complicated legal case um climate change was only one of a number of issues raised in the case and i'm only going to focus on those but in discussion we might open it up so the issue in this case um and let me just get the um wording in front of me was whether the um secretary of state in passing the airport national policy statement had been consistent with section 5 8 and section 10 of the planning act 2008 and you can see them up on the screen now just before i go to that wording i would note that actually the wording is quite atypical for a piece of uk legislation you see these types of obligation in for example australian legislation but not so much in uk legislation so in regards to section 5 8 um it makes clear the reasons must in particular include an explanation of how the policy set out in the statement takes account of government policy relating to an adaptation to climate change so this is a duty that the reasons must include an explanation in this case case the government had concluded that government policy a bit highlighted in yellow was the climate change act 2008. the argument um against that was to say no government policy policy is an actual fact the commitment that the government has shown since then to the paris agreement which was completed in 2015 and that commitment is a more ambitious set of targets than that included in the climate change act 2008. now what argument is correct is going to depend on the interpretation of government policy um and this is particularly interesting because government is with a capital g and what we find is that in the divisional court the conclusion was yes no government policy is the planning act 2008 while the court of appeal concluded that government policy did include these later very explicit commitments to meet the targets in the paris agreement the court of appeal also concluded in relation to section 10 um that the failure to take into account the commitment to those targets was um also a breach of the obligation of having regard to the desirability of mitigating and adapting to climate change now before i um wrap up let me just say two things um about the case one is some people have interpreted this as a kind of backdoor way of implementing an international treaty that's not what it is what it is is an interpretation of how do you figure out government policy with a capital g in relation to a dynamic issue such as climate change and really what we see the court doing is saying well actually it needs to be current government policy and and again i would draw a big distinction the court doesn't move this but between government with a capital g and a small g um the second thing to to note in relation to this is this is not going to to stop the Heathrow third runway necessarily both obligations require a revision of the national policy statement under section six um and no more and as we can see they are about how the case is kind of reasoned so i'm finally moving to my last slide um david um so coming back to the outline of this presentation um climate change following plan b earth well to me plan b earth is one of a number of cases coming before courts across the world which represent what i would call a new legal business as usual and what i mean by that is climate change is increasingly going to feature in both public and private adjudication because it is going to be legally relevant because of the way in which changing environmental conditions are going to give rise to legal disputes more specifically i think what we can see in regards to the planning act is that the court of appeal is interpreting section 5 8 and section 10 as dynamic legislative obligations what i mean by that is what is government policy on climate change is inevitably going to change over time as both international ring regimes and national regimes ratchet up to deal with the climate change problem and my final conclusion um is to stress that all of this this new legal business as usual cases such as plan b earth isn't going to need the fostering of a not necessarily a new type of legal expertise because i hope what you've begun to see from looking at these three cases is they raise issues that will be familiar to you but a very particular type of legal expertise which really understands the particular type of problems that climate change raises um that's all i have to say there's some further reading because as an academic there is always further reading to encourage you to look at um and can i just apologize for the slight hitches at the start thank you very much [00:20:50] Speaker 1: very much. Liz, many thanks. I'm hoping Tim's not going to have the same issues, but he seems not to. The next speaker is Tim Bewley QC, Silk at Landmark Chambers. He's going to speak to you on the proposed new regulatory system and the Office of Environmental Protection, which is to be set up under the bill. Tim has had involvement in government and non-governmental matters for many years and, indeed, gave evidence to parliamentary committees when they were considering the pre-legislative version of the bill which was published in late 2018. Tim, [00:21:32] Speaker 3: thank you very much. Thank you, David. Hello, everybody. I think I've got control of the slides okay. I've just flipped them back and forth to test that, so hopefully you all saw that. So, as David said, I'm going to be talking about the new proposed new Office for Environmental Protection, which is the proposed new, well, enforcement body, environmental body, regulator. We'll come back to that in a minute under the current bill. And notwithstanding some of the points I'm going to be discussing, it's plain that, assuming that this goes through, and this is enacted in roughly its current form, this is going to be a pretty significant new environmental body. It's going to be particularly important if you are or if you're advising public bodies because, effectively, this is the body now that oversees you in the implementation and operation of environmental legislation. It's going to be very important if you're an environmental campaigner or advising environmental campaign groups, because it's going to be an important body to try and get on your side and try to persuade, try to persuade to, to, to push forward part of your agenda. And it's going to be an important body if you're a private organisation, if you're a developer or a commercial organisation or something of that kind, because although the OEP doesn't directly interrelate with you as a private body, it has the capacity to make significant impacts, both in terms of your, both, both in terms of influencing environmental practice and policy and law, and also in terms of potentially interfering in a fairly direct way in the way that judicial review might do with, for example, a grant of a permission or a licence or something of that matter to you. So if, if it goes through and notwithstanding some of the weak points, it's going to be important to be aware of it. What's the background to all this? Well, critically, obviously, and I think David's briefly touched on this, but Brexit is critical to, to the background, to the OEP as it is to the environmental bill generally. And in particular, the thinking behind the creation of this body, it's critical that as acknowledged by the government in its policy paper, which I've quoted in the second bullet point of Green Future, our 25 year plan, the concern arising from Brexit over obviously the loss of environmental legislation in certain potential respects, but also the loss of the role in particular of the European Commission and going alongside that the CJA and the European Environment Agency. And so the government has committed to setting up a new body to, to hold government to account as well as, as well as environmental principles that David's going to be talking about. Just by way of background, it's worth noting there are two previous iterations of the current bill, the draft environmental principles and governance bill, that's the one which was considered by the environmental audit committee and which I gave evidence about last year. Yes, last year. And then very shortly, the environmental bill 2019, which fell when, when the government, when the general election was called at the end of last year. I just also note that David has given various, in his slides, which we'll come to, which we'll get to, has given links and so forth for some of these documents. I haven't repeated them in my slides. And in general terms, it is worth noting the very wide ranging report of the environmental audit committee, which I've referenced there and which can be found online. Great. So, OEP, established by chapter two, part one, chapter two of the bill. Clause 21 establishes the OEP as a body corporate, and there's further detail provision in schedule one. And importantly, two main, or one main principal objective of the OEP to contribute to, and then there are two aspects of this. First of all, environmental protection. So the protection of the current state of the environment, I suppose that is. And secondly, and separately, the improvement of the national environment. And I'll contrast that with the Environment Agency in just a moment. It's also interesting to contrast that with the obligations imposed on government directly, which are not under any equivalent obligations or objectives in relation to the environment. So we have this oversight body, enforcement body, which has these objectives, but no such objectives imposed on government directly. It's got to act objectively and partially and so forth, because its function is said to be to hold government to account. We'll see that said repeatedly in the explanatory notes and the policy papers. And it has two main sets of functions. First of all, the scrutiny and advice functions clauses 25 to 27. And secondly, it has various enforcement functions clauses 28 to 38. And I'll come on to both of those in just a moment. Just before I do that, then, two important points, just so we can think about where this body sits in the overall hierarchy of environmental protection. First of all, then, perhaps obvious, perhaps not, but really important. The OEP, the Office for Environmental Protection, is not the Environment Agency. And there are two points, I think, worth making about this. The first is, it's quite important to note the different purposes of the Environment Agency. Now, the Environment Agency's principal aim is set out in Section 4 of the Environment Act 1995. And I think that's been amended over time. But its basic purpose is to promote sustainable development. Now, that's obviously quite different from the purpose of the promoting Environmental Protection and Improvement. Obviously, that sort of thinking comes into the Environment Agency's aims, but the Environment Agency is explicitly enjoying to balance that out with other matters, in a way that the OEP is not. The OEP's focus is on Environmental Protection per se. Doesn't, of course, mean it doesn't have to have regard to proportionality and other matters, but that's its guiding principle. The second point, in terms of understanding what the OEP's role is, in contrast to the agency, is about who each agency or each body is facing. The Environment Agency regulates private activity with respect to the environment. So its role is often to grant licences, check environmental permits, check that those permits are being complied with, and separately, for example, in relation to flood defence, it can take direct responsibility for certain aspects of the natural environment. Now, the OEP doesn't do either of those things. The OEP's role is concerned with the conduct of public authorities, including, by the way, though certainly not limited to the Environment Agency itself. So the OEP, it's not directly concerned, it's not directly facing private operators, and it's not directly concerned with taking action for environmental protection itself. Its role is to oversee government conduct and public body conduct. Separately, and also importantly, and notwithstanding the initial reasons for its creation, the OEP is plainly not the EU Commission. And again, I think there are two important points to make about this. The first one is an obvious and perhaps inevitable one, it's the first two bullet points on this slide. The OEP is a national body, and its focus is on compliance. Therefore, it necessarily comes at it from a perspective of compliance with national law. Whereas, of course, the EU Commission was a supranational body, and its focus was on compliance with overriding non-national EU law, and in particular EU law, whether the UK is holding up to those standards imposed from outside. But separately, also in these bullet points, but equally importantly, and in some ways, perhaps more questionable, because the first point is rather inevitable. Inevitably, the OEP is going to be a national body. Separately, the OEP's focus is on compliance by sub-national bodies. So the OEP is not primarily concerned, and certainly in its enforcement functions, it's not primarily concerned with whether environmental law is being complied with by the UK as a whole, but it's concerned with individual public authorities. Whereas the EU Commission's focus was on compliance by the UK as a whole. And that was a point which led to quite significant criticism by the Environmental Audit Committee and some of the passages which I set out on this slide. Under the accountability framework, local authorities or armed length bodies who may have limited control over their budgets could be held to account for failings outside of their control. For example, they may just not have enough money to enforce or comply with environmental law or to take appropriate action in respect of breaches by private bodies. And so they will be held to account for that. And then separately, the committee said, the bill makes individual public authorities responsible rather than the government as a whole. Professor Scottford said that since environmental problems are often collected with multiple causes, multiple agencies needed to remedy breaches, it was strange to make individual public authorities accountable. But the real point here is that you're going to have potential gaps. There are going to be situations where yes, it may be either it can be said that a particular public authority has failed to comply with environmental law, but its ability to do so was beyond its control. Or where the problem is that the public body will be held to have complied precisely because the OEP is not in a position to investigate matters outside of that laser-like focus on the individual public body. And so matters of concern, matters which may be failures to properly implement even national law, environmental law will go unnoticed or unremedied. Okay, let's look in a little bit more detail about the two aspects of its functions. First of all, as I've said, it has scrutiny and advice functions. They're imposed under clauses 25 to 27. There are three separate functions. Monitoring and reporting on environmental improvements, plans and targets, that's clause 25. Monitoring and reporting on environmental law, clause 26, and advising on changes to environmental law, and I've put in italics here, I'll come back to in a moment, where requested by the Minister. And in relation to clauses 25 and 26, reports by the OEP must be laid before parliament. And the OEP has a discretion in relation to do that also in relation to advice given under clause 27. But it is just worth reflecting on the limits of this again. So think about clause 25. The environmental improvement plans are of obligations imposed earlier in the bill separately on government to publish plans and targets. And so it's, as the explanatory note saying clause 239, this month, the OEP's monitoring and reporting function will hold government to account on its environmental improvements and commit commitments. But critically, it is holding the government to account for its own commitments. It is not, it has no role outside of that, no role in formulating whether those commitments are problematic in the first place or whether they're strong enough, nothing of that kind. Much the same in relation to monitoring and reporting on environmental law. That is about monitoring and reporting on the implementation of existing environmental law, which of course, although the target of this will often be central government, what that law is will itself be set by central government. So there's a limitation there. Curiously, the explanatory notes to this clause say this provision would, for example, allow the OEP to produce a report considering the operation of existing environmental legislation, highlighting particular strengths and weaknesses. There's a hint there that the OEP may have a role in considering the strengths and weaknesses of the legislation itself, but I don't think that's the intention. It's very much about has the government complied with its own commitments, not should there be improvements in what those commitments should be. Clause 27 is certainly different, advising on changes to environmental law, but the critical limitation there is that that's only where requested by the minister, the OEP has no such function if no such request is made. And so there's a kind of gateway control of the OEP by the by government there, which will limit the OEP's ability to operate as a sort of independent scrutiny of whether the law is being developed in the right way. So much then for the scrutiny and advice functions. I'll spend a little bit longer on the enforcement functions. Clauses, as I say in the slides, 28 to 38 make provision about the functions of the OEP in relation to failures by public authorities to comply with environmental law. And I should probably have included on this slide that environmental law is defined in clause 43 to mean any legislative provision to the extent that it is mainly concerned with environmental protection. Now that's not a straightforward definition. It's not that it's not clear how that's going to be interpreted, for example, in relation to the planning legislation. Certainly some planning legislation is very heavily concerned with environmental protection. It's not clear that all of it is. And then the excluded matters are matters which needn't be of major concern. But there is some uncertainty about how that would be interpreted, it seems to me. And as I say on the slide, there are then two within this overall enforcement function, there are two broad ways in which the OEP can take enforcement action. First of all, investigation, followed by environmental review, and secondly by judicial review by the OEP itself. We'll look at those in just a moment. But just before we do, have I got control of the screen? An important point about what the basic focus here is, as I said just a moment ago, the focus is on failure by a public authority to comply with environmental law. That's defined in clause 28 to, to mean either unlawfully failing to take proper account of environmental law when exercising its function. That sounds familiar if you've got any experience with judicial review. Or unlawfully exercising or failing to exercise any functions it has under environmental law. That sounds very much like a form of Wednesday review, the same sort of review that the judicial review court itself, the High Court itself would undertake. And that's quite a limited role therefore, and the environmental audit committee was quite critical of this because it seems to limit the OEP to a sort of Wednesday review function. And certainly the government, although I don't need completely clear, certainly the government's response to the environmental audit committee seems to, seems to, seems to indicate that is indeed the government's intention. The premise of its reply that we don't need to go beyond the Wensbury Test is that that is indeed what was intended. Briefly on this because I've touched on it, public authority is then defined and it means any person carrying out a function of a public nature, that's very broad, and then certain bodies are excluded, courts and tribunal, COEP itself, parliament, and then devolved bodies. But that just makes the point that I've already made that the focus here is very much on the individual public authority and not on compliance by government as a whole or across government, which may be an important limitation for the reasons I've given. Okay, so then two, focusing then on the investigation and complaints route, what's curious about this is that it looks more than anything else like the model you would see by an ombudsman. So under clause 29, anyone can complain to the OEP of a failure by a public authority to comply with environmental law. Under clause 30, the OEP may then investigate either of its own motion or in response to a complaint, provided it thinks that the failure may be serious and that's a limitation which runs throughout the OEP's functions. So it's not concerned with, I suppose, the more small scale, which is environmental law, it's not during the investigation process, it's then got duties to keep complaints informed and to require information. And I say in the final bullet point, it's really a little bit unclear, it seems to me, exactly what the OEP's role is. As I said, its role is here to investigate failures to comply with environmental law. That looks like a Wensbury test. But on the other hand, the structure of the body does, one would imagine it making, for example, findings of fact in a way that might may go beyond the court. So I think there's just a lack of clarity about the extent, about whether this is just mirroring the role of the administrative court or the planning courts, it would now be, or whether there's something more to it than that. And that's something that the courts are going to have to iron out or the OEP in the first instance, and then eventually the courts are going to have to iron out. But the really important limitation on what the OEP does here is in clause 33. So where the OEP is satisfied on the balance of probabilities, by the way, that suggests, of course, a fact-finding role that's different from judicial review, that there has been a serious failure to comply with environmental law, it can give a decision notice. Curiously, it doesn't issue a decision notice if it if it concludes there has been no such failure. And then the decision notice will do two things. First of all, it will describe the failure, fair enough, give its reasons, in other words. And secondly, set out the steps the OEP considers the authority should take in relation to the failure. And there are two really critical points, I think, to note here. The first is that the decision notice is not binding on the public authority, either as to breach, i.e. non-compliance, or as to remedy the steps that it should take. And the second is that the remedy cannot include, and this may sound blindingly obvious, but it's actually an incredibly important limitation. The remedy cannot include taking steps which the authority has no power to take. And what, as I say in the slides, that means it cannot undo decision in respect of which it's functions officio. Now that's really important because although there will be cases where the complaint or the investigation relates to, for example, the adoption of a policy, and what's being said is that the policy is unlawful, there will be many more cases one imagines where the complaint is about a public body having done something like issue a planning commission or issue an environmental license, where once that license is issued, it's functions officio. It cannot undo the decision or it can only do so on terms that it's very unlikely to accept like payment compensation. And that means that the end of all of this process, at least insofar as one is concerned only with the OEP, may be something that's not much more than a slap on the wrist or a recommendation for future changes, but not something which will undo the unlawful or the harmful actions of the public authority in the first place. All of that gets curiouser in my view when one sees how that marries up with clause 35. Now clause 35 is concerned with what's described or what's named environmental review. And environmental review is a process whereby the OEP as payment effectively or as applicant can apply to the upper tribunal for environmental review provided it thinks it's appropriate to do so. But this is where you seem to have something of a mismatch because the target or subject matter of environmental review is not, as I think one might expect to see, the public body's acceptance of either the findings of the OEP itself in the investigation phase or of the remedy, its willingness to comply with the steps, the remedy which is recommended, it is the conduct described in the decision notice itself. In other words, it's the original failure, the original alleged failure of the public body to comply with environmental law. And so what you have therefore at the end of this, what may be lengthy process of investigation is a form of effectively statutory judicial review, but conducted in the upper tribunal, where the upper tribunal's concern is simply with the legality of the original action. And all of the investigation process, I mean, it can feed in to the application for environmental review in the sense that it may generate some evidence or it may inform the thinking of the OEP when it brings that claim. But it doesn't have any significance, it doesn't, on the face of it, have any binding effect on the tribunal or even form the starting point for its consideration. And what the UT has to do is simply apply ordinary judicial review principles, sorry, finish on that slide, apply ordinary judicial review principles to consider whether the original action is indeed unlawful. And if so, it can grant ordinary judicial remedies subject to considering hardship prejudice to third parties. Now, of course, in any case where a court is considering granting ordinary judicial review remedies, it will need to consider questions of hardship and prejudice to third parties. But the section or the clauses it currently is makes that a particularly important consideration and highlights the importance of that. That no doubt reflects, possibly as a result of the talk I gave to UK last year, the concern that if you've got a process of judicial, effectively judicial review, brought months and months after the original or even longer after the original action, it's going to be important to consider whether it's unfair to the third party to have their planning commission quashed, something like that. That's true. And that's, that's an important concern. But on the other hand, it does lead one to wonder about whether the court, how effective this process is going to be because that those hardship and prejudice, prejudice issues are likely to be so large. And so on this slide, what I want to suggest is that there is still a pretty fundamental mismatch. And this was a more stark problem at the time of the draft environmental principles bill, which I gave evidence about last year, but I still think there's a pretty fundamental mismatch between the investigation and the court and call it that the court phase. In terms of the scope, then the OEP will investigate the failure to comply with environmental law. That looks a bit like a judicial review process, but it looks as though it may at least go a little bit beyond that in terms of the OEP specifying role, whereas the upper tribunal is confined to ordinary judicial review. But secondly, and much more importantly, there's a complete mismatch, it seems to me between the remedies which the OEP can give and those which the upper tribunal can give. What the OEP can do, can't do perhaps, let's start with, it cannot require the public authority to undo apps where it's functions officio. But what it can do, and this is surely an important aspect of its functions, is it can make wide-ranging recommendations of the future. It can say, in order to avoid these problems arising again, you should do X, Y, and Z. The upper tribunal is in almost exactly the opposite position. It can quash decisions in respect of which the public body is functions, so that's fine. But as we've seen, because of hardship and prejudice issues, it may not do so. But on the other hand, it's a court, and it has no role at all in making recommendations for the future, so that if the public body doesn't comply, doesn't accept the more wide-ranging recommendations of the OEP, there's no method now of enforcing them at all. So much for investigation and environmental review. The alternative course open to the OEP is a straight form of judicial review, and this is arguably, it was possible previously under the draft bill, it's now made express that under clause 36, the OEP is empowered to bring its own claim to judicial review in respect to the serious failure to comply with environmental law. And I should have said, and I haven't done so on this slide, that that includes not only judicial review in the strict sense, but also any form of statutory review, so you could bring a section 288 planning challenge, for example, something of that nature. And it's also, I should also have said, and I didn't on the slide, but we'll update them, it should have said that the OEP has power to intervene in judicial review claims brought by others. Now that proceeds as an ordinary claim for judicial review in all respects, but one with the OEP as a claimant and that slight oddity, I think, is that the court cannot refuse relief on the basis that the outcome will be highly likely to be the same. Now it's not quite clear to me why that exception has been put in place. I'm not a great fan of the highly likely limitation on judicial review remedies introduced in 2015, so I don't have a problem with it, but it's not quite clear to me why an exception is made to the OEP if the position really is that the outcome would be highly likely to be the same. And the court can grant the ordinary relief on any claim for judicial review. Effectively, this is just a claim for judicial review. So say that where a court finds in favour of the claim, the public body is under an obligation, will be under obligation within two months to publish a statement that sets out the steps it intends to make in light of the finding. That, I think, is a little odd. Surely that would be the thing that you would expect to have found as a response to the environmental review informed by the OEP's own recommendations, but instead we find it on course 36 in relation to the judicial review. Conclusions. I do think that the overall scheme, certainly in relation to the enforcement functions, is still rather badly thought through. There's the mismatch between scope and remedies of OEP investigation and the UT's environmental review role that I've already discussed. That reflects what seems to me a fundamental problem, which is that the environmental review does not provide a means, and there is no other means provided, for enforcing the OEP's recommendations and conclusions at the investigation stage. What I would have expected to see, I think, is that you have judicial review, as we do have in clause 36, but then separately, the role of a court at the end of the OEP investigation stage will be much more tailored to what the OEP's own investigation has produced. You could have an appeal if you wanted to make the OEPs stronger. You could provide for an appeal against its finding recommendations. If you wanted to make it a little weaker, you could give it a power to apply to the court to enforce its recommendations. But we don't have either of those things. We've got a sort of strange muddle between judicial review and enforcement. And that leads to the odd irony, I think, that if the OEP is dissatisfied with the response to its recommendations, arguably, it shouldn't be bringing a process of environmental review, but should simply bring its own straightforward judicial review, either under clause, I think that should say, clause 36, apologies, or separately. And then finally, there's, I think, a slightly unclear relationship between the two limbs. So the investigation environmental review stage on the one hand, and the judicial review process on the other. What all of that means, I think, is that there's quite a lot of scope for unpredictable responses by the courts in interpreting this legislation. And they could interpret it in a way that gives it a lot of teeth, notwithstanding the limitations, which may not comply with government's intentions, or they could interpret it in a way that gives it very little teeth at all. Maybe they'll find a way through that, but the poor design means the whole thing is rather unpredictable. Thank you very much. I think I'm now handing over to, look forward to hearing some questions at the end, but I'm handing over, handing back to David for now. Thank you. [00:51:50] Speaker 1: Thanks, Tim. I'm going to deal with another aspect of the new system of environmental regulation, which is the issue of environmental principles. The principles have been set out in a series of stages, as have the proposals for the OEP. And I've set out a timeline, which I'm not going to go through, and you'll see it on this page and the next. It began with the draft bill in 2018, which had to comply with obligations in the Venn Draft Withdrawal Agreement, which has been modified. The first full bill, of course, was published just before the general election last year, and it has been reissued in revised form for the current parliamentary session, although, for obvious reasons, the committee stage has stalled during the current crisis. Can I draw your attention in particular, not only to the government response to the public consultation, which followed the draft bill, but also to the two reports of the two parliamentary committees, at which both Professor Liz Fisher and Tim Bewley gave evidence. That is the 18th report of the Environmental Audit Committee and the 14th report of the Environment, Food and Rural Affairs Committee. They contain a lot of the debate, summarises quite usefully the debate, and sets out a number of recommendations, which still remain valid criticisms of the proposals, because some of the recommendations, particularly in relation to the issue I'm talking about, environmental principles, have not been responded to, at least they've been responded to, in the sense that the government has decided not to follow them. The latest version of the bill, and some documents, including the expenditure notes, the policy statement that accompanied the bill, and the fact sheet, which deals with the regulatory provisions that we're talking about, are all available on the website, and I recommend you have a look at them, although they don't really advance matters very far. This is all to be contrasted with the current position under EU law, which will continue in an attenuated form under the provisions of the Withdrawal Act, currently found in Article 191 of the TFEU, noting in particular, the legal duty in Article 191 in relation to the high level of protection duty, and although it refers to union policy on the environment, it is in fact a legal obligation, and you'll see set out in that sub-provision of Article 191 also a number of principles, the precautionary principle, preventative action, rectification of environmental damage at source, and the polluter pays, which are reflected in the principles, but here it's imposed as a legal duty, and you'll see these principles and these duties permeating the case law, the government's intention with the environmental principle is to have something rather more distant from the legal scene than that, whether or not that successful is going to be another matter. The purpose of the regulatory changes was of course to replace the role of European environmental law, which underpins the vast majority of our current domestic legislation, and to embed environmental principles in future policy making, and I've set out a few provisions from the explanatory notes, which set that out. Under the earlier withdrawal agreement, in particular, the earlier protocol which applied to Northern Ireland, but which contained wider principles, there was embodied in it a principle of non-regression, which is to say that environmental control controls post-Brexit would be no less rigorous than those applicable in the EU, but that, as with the other wide-ranging revisions to the Northern Ireland protocol in the final agreement, was removed, and so when you read articles and the criticisms of the various committees, that relates to the version of the withdrawal agreement, which was then in force, well it wasn't in force, which was then in play in 2018-2019, of course, prior to the final agreement, which was reached late last year. There is nonetheless strong language used about a firm commitment to a high level of environmental protection. How that is given effect through the bill remains to be seen, and what the courts make of it will also remain to be seen. There are fine words in the expandatory notes and in the policy statements, but my view certainly is on the environmental principles, is this represents, at least potentially, a watering down of the protection given to those principles and their application as a matter of law in the longer term. The relevant provisions are here. 16-18 of the current bill also see the provisions meant to provide some degree of transparency in sections 19-20, which I'll deal with briefly at the end. The environmental principles are defined by draft clause 16-5, and they'll all be familiar to you, including the precautionary principle, the polluter pays, and that environmental protection should be integrated into the making of policies, and that reference to policy is a key point, which I'll come to in a moment. Oddly enough, the environmental principles, although they're defined to that extent, and I've used the language verbatim from the bill, they're not defined any further. It is very odd, then, to go to paragraph 178 of the explanatory notes, which announces that the meaning of the principles is as follows, and it sets out a rather more detailed exposition of those principles, which is missing from the bill, and one rather wonders why there isn't better explanation in the bill, and it may be that what is in the expandatory notes will eventually find its way into the ministerial policy statement, which is required under the current provisions. If not, then, of course, the expandatory notes will remain available to look to in ascertaining the purpose of the provisions if the court has to consider their meaning. The principles, of course, critically have an important role in European environmental laws, I've already mentioned, and as I've said, they permeate a great deal of the case law, and to take a very familiar example, article 63 of the Habitats Directive, the requirement to screen and to undertake appropriate assessment, referred to, of course, most famously in the Baden-Zoe case, but more frequently, more recently in the Sweetman case, and that whole raft of cases, of course, beginning with the Orlean's case, then people overwind, Grayson Sweetman, Holohan, and the like. The precautionary principle is a fundamental underpinning of a lot of that in terms of the legal authority, and of course, as I mentioned, there is specific reference to those principles in the TFU article 191 itself, and indeed the consultation paper initially referred to their international nature when setting out the government's intentions. Of course, that was at the stage of the non-regression principles. However, you will see at paragraph five, the watering down begins to set in, where it refers to drawing on the current environmental principles. It will remain government's responsibility to set policy within the framework of these principles, and what essentially the bill does, as the draft bill did previously, is to place the principles one stage removed, or at least that's what appears to be the intention, one stage removed from the interpretation of law and imposing them as a duty on ministers in formulating policy. So it leaves open the extent to which ministers could depart from EU concepts, and what the reference points would be for the application of the environmental principles, given, as I've said, the lack of specific direction in the bill. And you see phrases in the January 2020 policy statement, the references to creating a new system, which is tailored specifically to a UK context, as ringing relatively gentle alarm bells, I suppose, or more serious, depending on your perspective, that, in fact, the government will apply those principles as seems most fit in the context of the circumstances prevailing here, and dare one say it, according to what is regarded as politically expedient. See the fact sheet, which was published on the 10th of March. Parts one and two deal with the regular provisions. There's a reference, as there was in earlier consultation, about embedding environmental principles into domestic law. But one shouldn't get too excited about that, because I think all that means is embedding it into domestic law for ministerial policy making, because that is what the bill does. And there are references to innovative solutions, and the like. The principles will not be overriding, or even necessarily be presumptively applied, when you're balancing them with wider objectives. So, the issue of ministerial discretion and expediency in balancing other objectives with environmental protection clearly remains at a policy level with ministers, despite the principles. There is control. There is a public consultation process on the basis of a draft policy statement, which the Secretary of State is obliged to provide, and then lay before Parliament. And the obligation on the Secretary of State is merely to produce a response if Parliament passes a resolution, making comments on the draft statement, or a parliamentary committee makes recommendations. But then the Secretary of State having produced the response is only then required to lay the final statement before Parliament, which takes effect at the time it is laid. In other words, before there is any further debate, if any on it. There appears to be no real control over the statement other than the process itself. There's no requirement for an affirmative resolution, and it appears to be purely a political control. And indeed, in that respect, it pretty much clearly follows the model for national policy statements in Section 9 of the 2008 Planning Act. As I've said, the bill focuses on the role of environmental principles as being confined to ministerial policy making in the context of a statement, which is to be published by the Secretary of State, which will explain how the government proposes to interpret and apply the policies. And you'll see the language, and I've given in red some of the key concerns, how the environmental principles should be interpreted and proportionately applied by ministers of the Crown when making policy, which appears to leave a wide discretion to ministers as to how they propose to interpret and apply those principles in making policy, one might say notwithstanding the development of EU law in relation to those principles. Even then, in the light of that policy statement, the critical duty in clause 18 is only to have due regard to that policy statement. There is no equivalent provision to Article 1912, no legal duty to have the objective of a high level of protection, nor is the government policy statement is it required to do so, providing it weighs all the principles against other objectives. And a government policy statement, which only directly affects policy formulation, of course, does not have the same legal effect or the same teeth as enshrining the principles in constitutional documents such as the TFEU. It won't bind public authorities and regulators, it won't be applicable necessarily except through the policy statement when decisions are made, and can be varied by the Secretary of State as politically convenient. It remains a question as to what the courts will do with it in due course. I've set out in a little more detail those concerns. And I just note at the bottom of that page, you'll see the key recommendations of both those committee reports that I mentioned earlier, and I've given you the references, which recommended that more be done to embed those principles as a matter of general law to be applied by all including regulators, as well as the courts, but those recommendations were not accepted. And whilst it is true that under the Withdrawal Act, as amended by the Withdrawal Agreement Act earlier this year, which introduced quite a lot of complex amendments to the original act, European law remains in an attenuated form and applied through the principles of the Withdrawal Act, at least up to withdrawal day or the end of the transition period as modified by the Withdrawal Agreement Act. EU principles will continue to be applied subject to the provisions which allow derogation from European decisions, notwithstanding the duties in the Act. But of course that's all subject to gradual change which can be introduced in future legislation. The key duty to have due regard to the policy statement is, as I've said, far removed from the duty to give primacy to the principles in any specific case and leaves open the potential for opening a wide gap between the formulation policy and its and the actual application of the principles in specific cases. And worryingly, the explanatory notes say at 190 that this means that when making policy, ministers of the Crown must have the correct level of regard to the content of the environmental principles policy statement, it's sort of Humpty Dumpty with knobs on. And indeed, as the 14th report of the Environmental Food and Rural Affairs Committee noted, it's too weak a duty. It risks a possible regression on current standards of environmental protection. Ministers are equally not required to do anything or refrain from doing anything if they consider it would have no significant environmental health or they consider it would in any other way be disproportionate to the environmental benefit. Explanatory notes, again, make some interesting suggestions. Significant means not negligible, apparently, and disproportionate again introduces another wide discretion on the part of ministers. And I've given you a quote from paragraph 192, situations in which action would not be reflective of the benefit or costs, environmental or otherwise. Again, at each stage in terms of policy formulation, how the principles are to be interpreted, then the due regard requirement of clause 18.1 and then this ability to apply another proportionality test in clause 18.2, each give a layer of discretion and interpretation to ministers. The OEP will have power, it's proposed, to monitor the implementation of environmental law and to report on any matter concerned with environmental law. Is that sufficient? I suspect the answer is not, given the view of the government at the moment and its role to advise on environmental law and possible legislation under clause 27 is at the request of the Secretary of State only. You see the government response in the original, following the original pre-legislative scrutiny and the report on the 19th of December and it rather sidesteps the issue of the lack of a direct legal duty. And you see government doesn't currently consider it appropriate to extend application beyond central government. And there's a lot of statement about levels of commitment and high levels of concern. And then oddly enough, an example is given of the NPPF, setting out a clear framework for all planning policies, local development plans. Well, this sidesteps the issues clearly because of course the NPPF, as the courts have made it clear in recent years, most recently in the judgment of Mr Justice Holgate last month, that of course the planning framework still has to take effect, having regard to the legal duty to apply the development plan unless material considerations indicate otherwise. And those material considerations include the NPPF and national policy, but they do not take precedence in law to the provisions of the development plan. There is no such equivalent principle for environmental protection and the environmental principles. It's a misleading example, therefore with respect to the government, and it doesn't really grapple with the issue of the need for a legal duty. But it's quite clear, despite the criticisms, that the government's position has not moved on this. It wishes to retrain considerable control on the formulation and application of the principles. Finally, on the issue of transparency, there are two provisions, which I'll deal with briefly. Under clause nine, when a minister is in charge of a bill, which in his view, or her view contains the provisions which have enacted would be environmental law, is required not only to state as such, but either to make a statement that it will not have the effect of reducing the level of environmental protection, and takes account of the matters which I've set out there, or make a statement that it makes a statement that the minister is unable to make a statement, but the government nevertheless wishes the House to proceed. That may mean that the minister is unable to make a statement that it doesn't effectively derogate from the current level of protection, because it's going to do just that. The explanatory notes suggest an example is where the existing protection is no longer justified by new scientific evidence, but of course the bill is not restricted to that. Also interesting to note that the explanatory notes repeat a point that's made elsewhere, that the government doesn't consider these provisions apply to the wider planning regime, other than the specific environmental assessment provisions, and I'd suggest that this is questionable, notwithstanding that clause 43 purported to define environmental law as mainly concerned with environmental protection. Well, there's a debate to be had about whether that includes planning, and it's also a debate to be had with whether that's consistent with the Aarhus Convention. There's also finally a duty under clause 20 to report on international environmental protection legislation. Thank you. This is now an opportunity to answer questions, and we've had a number of questions via the Q&A slots, and so can I invite Tim and Liz to start please? [01:11:37] Speaker 3: Shall I just kick off? I picked up a couple of questions, two sort of broad themes of questions, there's more than one question under each theme, but I'll just take them as a whole. So one set of questions are related to the OEP's relationship with Natural England. And I mean, the answer to it is, in a nutshell, is that the OEP's relationship with Natural England is the same relationship that it will have with any other public body implying environmental law, for example, the Environment Agency, which I touched on expressly. So the OEP doesn't take over a Natural England's role at all, it doesn't impact directly on that. But what the OEP will have to do is consider Natural England's compliance with the environmental law that it applies. It will be an oversight body for Natural England as it is for the Environment Agency and, for example, local authorities. That's perfect, that's completely clear in relation to the enforcement role. In relation to the reporting and advice function, the other limb of its functions, it's perhaps a little bit more muddy in that, for the most part, I mean, it doesn't, it doesn't, someone asked, does it supersede the reporting functions of Natural England? Well, well, no, not, not so long as they remain on the statute books. Um, but it's fair to say there could be some overlap specifically when, I think only when the, um, OEP is exercising, chooses to, uh, exercising its advice functions under Clause 26 because it has a slightly roving brief there. So it could decide to look at something that Natural England is directly concerned with, but, and sort of replicates some reporting done by Natural England, but presumably will exercise a degree of discretion about that, not directly trespass on Natural England's territory. But there is a little bit of scope for overlap there. Not otherwise. The OEP sits, if you like, above Natural England. Um, so that's, hopefully that answers those, that set of questions. [01:13:52] Liz Fisher: Shall I come in here, Tim? There's a question directed to me about what is legal business as usual, um, in relation to, um, the Plan B Earth case. And, um, thank you for the person raising it. So, so what I mean when I'm talking about climate change being a new business as usual, I mean that we cannot now as lawyers ignore climate change as a legal issue. So what I'm not saying when I'm saying business as usual is we go back and we do things the same way again. It is that climate change and peculiar kind of features of it. It's polycentric nature. These questions of assessment are now going to be far more part of the day to day business of adjudication. Um, and I just highlight two examples of that. So if we go back to this question about what is government policy in section 5.8 of the Planning Act, um, policy, I always find lawyers and, and the court said, well, it's, it's got its ordinary meaning, but I think different lawyers think policy is different things. And I think we're going to see far more discussion about what does policy mean? The other issue is to do with assessment. Um, an area which has traditionally been thought of as being governed by Wentzbury review, but as the second case I talked about, the Gloucester case, um, highlights, there are going to be questions about well, how does a decision-making authority or a developer fulfill their duties of assessment in relation to climate change? And I think that is going to raise a really interesting set of legal questions. So thank you for raising that issue. [01:15:27] Speaker 1: Greg Musil: Can I just, uh, I've sent a written answer to this, but just, uh, for those, uh, at least one person had difficulties, uh, during one of the presentations, we will be making available a recording, uh, of these presentations and a copy of the slides. So anyone who missed anything, uh, will be able to pick that up. Um, can I just raise the question about to what extent the courts will take account of, uh, new policy, uh, particularly the principles, uh, when formulating a response to, um, environmental challenges? Uh, can I kick off and then ask Liz for her, her view on this, please? Because I know it's something that she's, um, uh, been, uh, thinking about quite a lot. Um, Greg Musil: As I've already said with the environmental principles, one of the difficulties is the government has sought to focus the principles very closely on the formulation of policy. Of course, the principles that are set out are derived, uh, from common principles in environmental law and EU law in particular. And, uh, while the court is post-transition applying the provisions of European law because the, of the authorities that still bear on the, uh, the new versions of the, uh, environmental legislation that come into effect following transition, i.e. the amending Brexit regulations, the court is still going to be applying via decisions of the European court and interpreting, uh, preserved European legislation, um, European environmental principles, and in particular, the principles set out in article 191 TFEU. So we're going to have this slightly odd situation that you may be getting challenges which, uh, are concerned with the government policy statement on environmental principles, but also you will still have jurisprudence, uh, on the European approach to those principles. So the courts may have to end up reconciling those issues, uh, if they're faced with, uh, uh, an argument that a decision that's applied the policy statement has misinterpreted, say the precautionary principle or the polluter pays principle, uh, and, uh, and the two don't sit very well together with the European jurisprudence. Liz. Um, yes, and that's actually already been [01:17:38] Liz Fisher: happening before the European court of justice. So for example, since 2000, there has been a communication of policy statement about the precautionary principle and the court of justice on occasion has stressed, well, that's the commission's policy statement, but the precautionary principle is a general principle of EU law that operates separately from that policy statement. So one could argue that actually, you know, these environmental principles are always going to have a life of their own because they're not actually policy, um, statements. They, they are legal principles and they are also going to apply in areas which, um, the bill does not govern. [01:18:18] Speaker 1: Can I, um, and, and, and Tim might want to, uh, add to this, uh, in a moment, uh, deal with the question about, uh, the, the role of, uh, judicial review and the question of alternative remedies if the OEP is involved. Um, personally, I don't think the power of the OEP to intervene, uh, should be seen as an alternative remedy to judicial review. Number of reasons. Firstly, it's not governed by the same time scales and secondly, whether or not it chooses to intervene may not be made for some period of time after, uh, any normal judicial review period has expired and it may not produce a remedy which is equivalent to a judicial review remedy. Uh, all of that remains, uh, to be worked out if it decides, uh, to issue a statement and then takes the matter to the tribunal or indeed brings its own judicial review in due course. But, uh, I think for those reasons, it shouldn't be seen as an alternative remedy and I can't see the courts being terribly keen to allow extensions of time for judicial review applications on the basis that while we were waiting to see if the OEP would intervene. I think one shouldn't work under the impression that the OEP is going to be bringing a lot of cases per year because its resources, like everything else, will be finite and it will be focusing on cases which it prioritizes as a matter of significance. Tim, I don't know what your... [01:19:39] Speaker 3: I agree with that. I will just say before I add to what David said, I do think, I think David is right, but I do think it's quite an important, I do think it's a very important question. So whoever raised it, thank you. Um, because obviously if this did have the effect that the courts would start declining judicial reviews on the basis that there's an alternative remedy, this slightly fuzzy process of going to the OEP, that would be a very, very significant diminution in environmental protection, which one assumed is the opposite of what was intended. I basically agree with the points that David has made. I would emphasize one of them, which is the point that I was talking about, which is that the OEP, of course, at least unless you go off to the environmental tribunal, can't give the same remedies. There is another point which I think is really important, which is the expressed limitation on the OEP in relation to cases which it considers to be serious. First of all, there's a degree of discretion there. And secondly, it means that in a case which isn't serious, or isn't in the view of the OEP serious, there is no alternative remedy. And then to apply alternative remedies only in relation to cases which are serious, so the OEP might intervene would appear to be a bit perverse because you end up in a world where judicial review, you've got an alternative remedy for the really big cases and you can't bring it to this review, but you can't, you haven't in relation to other words. So for all those reasons and those given by David, I agree with the answer. But it is a point of concern, I think, and a point which the courts are probably going to have to consider. [01:21:14] Speaker 1: Can I just, in fact, I've just messaged Liz for a particular reason. I'm going to ask her to take one of the other questions at the moment. Can I just add to this? Matt Gilkes has raised the interesting question as to what the influence will be on the High Court of OEP decision making and the Upper Tribunal decisions. So far as the Upper Tribunal decisions are concerned, they're effectively coordinate jurisdiction with the High Court and indeed they may well be heard by a High Court judge sitting in the Upper Tribunal because of course all the heads of tribunals are High Court judges. And with the judicial review jurisdiction, I mean you see this in immigration cases, the High Court does often refer, when necessary, to Upper Tribunal decisions. And therefore, they're not binding as such, but they may be influential on the approach that the High Court takes. As for the OEP, I suspect it's going to be one of those things which will take time to build up. And if the OEP builds up its specialist jurisdiction and expertise in these matters, then you may find the High Court giving its decisions greater weight and having a greater influence as time progresses. But we'll only know when we get that far. Liz, sorry, having said that I wouldn't, couldn't you just deal with the issue about how EU law differentiates between the policy approach of the Commission and the precautionary [01:22:53] Liz Fisher: approach? So yes, and there's a great question about this. So in a case like artigen, this is mainly in the chemicals context, not in the habitats context. The Court of Justice has made clear that something like the precautionary principle is a general principle. And then you have cases like Afton where people, you know, litigants will argue for the procedures set out in the policy statement. And the court will say, well, no, that's not actually what the legal principle is. The legal principle is, you know, what is contained in the law. Just in wrapping up one final, I had a question, again, going back to section 5-8 and the planner, the plan B earth ruling. Just one thing to stress, the Court of Appeal was not finding that the Paris Agreement was binding. What they were saying is government policy included explicit commitment made by a number of government ministers to the Paris Agreement. Likewise, at the time of the fact, the time that the policy statement was passed, um, the Climate Change Act only had in section one, a target of 80%, but not what it now has, which is 0%, which happened later. So if you're looking at the Climate Change Act now, you might be a little bit confused, but that was only revised last year. Thank you. I think we'll wind up there. [01:24:15] Speaker 1: We'll have a look at the other Q&A's questions. And if there's anything we can sensibly say that we haven't said already, which will help, we'll try and put something online in due course. As I've said, recording of the session and a copy of the slides will be made available after we finish. Can I just thank Liz and Tim for taking part and thank you all for attending.