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Baroness Ramsay of Cartvale: My Lords, I must draw to the attention of the House that each speaker is allowed 12 minutes in this debate, which is limited to one hour. To go into the 15th minute is not helpful.

8.1 p.m.

Lord Goldsmith: My Lords, I thank my noble friend Lord Brennan for initiating this debate, which I should like to believe has produced a select group, if not a large one. Specialist courts are a good feature of our judicial system. They bring expertise and experience to the resolution of disputes which is good for the decision-making process and public confidence in it. Public confidence in the process is a very important consideration. We have examples in the employment tribunals, the Construction Court and the Commercial Court. The Commercial Court is a very good example of a specialist court which commands high public confidence because of its expertise and experience. The degree of international confidence in that court is remarkable. Many cases are brought in that court through choice of international businesses. A glance at the Daily Cause List any day will show many cases in which at least one of the parties appears to have no connection with the United Kingdom. Frequently, none of the parties has any connection with this country. That is good for foreign exchange.

It is the quality of the judges and their experience which is the advertisement for the Commercial Court. That court was very much the result of demand by the commercial community. It was founded in March 1895 as a direct result of pressure from the business community which had been outraged by the decision

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in Rose v Bank of Australia, which was a case on the esoteric area of general average. It had been argued by the greatest mercantile lawyers of the day who plainly had the widest possible grasp of the subject and decided by Mr Justice Lawrance who plainly had none. He was a judge who was described by Lord Justice Scrutton as having been the true begetter of the Commercial Court. His appointment as a High Court judge had been universally condemned. He was described in the Law Times as,


    "a bad appointment, for, although a popular man and a thorough Englishman, [he] has no reputation as a lawyer, and has been rarely seen of recent years in the Royal Courts of Justice".

That was not quite as bad as Lord Justice MacKinnon's later comment that Mr Justice Lawrance was,


    "a stupid man, a very ill-equipped lawyer, and a bad judge".

It was as a result of the failure of the decision in that case that the business community insisted on the formation of a commercial court; otherwise, it would set up an arbitration service of its own.

I am a strong supporter of the concept of judicial specialisation and specialist courts, but there are also dangers. Over-fragmentation of the court system risks a lack of overall coherence in the administration of justice, a reduction in flexibility as judicial or other resources are applied exclusively to one system, and a weakening of the skills of the senior judiciary.

Like my noble friend, I have great admiration for the report of Professor Grant, which is illuminating and thorough. His strong proposal for the establishment of a separate environmental court merits further consideration. I do not come to this issue as a specialist in the environmental field, although I have appeared in several major and long-running public inquiries. Unlike the position with commercial disputes in the late 19th century, I do not perceive that there is any widespread or general discontent with the expertise of those who deal with the bulk of environmental concerns at the moment.

So far as concerns the primary area of appeals on merit, that is dealt with by the Planning Inspectorate. Professor Grant rightly commends the inspectorate as an efficient organisation which commands a high level of public support. The 13th report of the Select Committee on Environment, Transport and the Regions of another place strongly recommends that, in view of the high quality of the work of the Planning Inspectorate, if there were to be an environmental court the inspectorate should be its first tier. I regard that as a sound approach. Similarly, at the level of judicial review the listing in the Crown Office enables cases to be placed before judges with appropriate experience and expertise. I am not aware of any criticism of their ability or handling of those cases.

Although that demand does not seem to be present, there are four cogent reasons for considering further this particular proposal: first, the desirability of establishing the Planning Inspectorate as a constitutionally independent judicial body. Professor Grant notes that over 98 per cent of planning appeals are determined by inspectors. The reality is that in

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those areas they are independent. They operate within the framework of government policy but apply it--the courts insist upon it--in a judicial, or quasi-judicial, way. Therefore, there is a strong case for making the theory fit the reality, and to shift the Planning Inspectorate from a government department to the judiciary makes sense.

Up to now the process has withstood ECHR challenge in the decision in Bryan v United Kingdom. The European Court of Human Rights was more or less prepared to accept the planning system as compliant. However, as my noble friend observed, the Human Rights Act provides a very good opportunity to look at it again.

The second reason is that the proposal provides a framework for more satisfactory environmental enforcement. The initial impetus for a separate environmental court came from Mr Robert Carnwath, QC, now Mr Justice Carnwath. He argued convincingly in 1992 that a major obstacle to effective reform of the system of planning enforcement was the lack of a unified court. The system operates by an enforcement notice, an appeal against that notice and eventually proceedings in the magistrates' court. But they rarely had enough cases to build proper tariffs, and the heavy-handedness of criminal sanctions and the delay before getting to the court meant that the enforcement system was, in his view, defective. If, on the other hand, there is a different court structure, a different tribunal structure, under which simplified applications can be made, not for criminal sanctions but, as Professor Grant recommends, for a simple order to enforce planning control, that could do a great deal to enforce better environmental controls.

The third reason referred to by my noble friend is the extension of public involvement in environmental control. That last consideration overlaps with the question of new functions and the extension of public involvement in environmental control. My noble friend is surely right when he says that the Aarhus Convention of June 1998 requires that member states allow persons with a sufficient interest to have access to review procedure to challenge--I emphasise this--the substantive and procedural legality of any decision.

The word "substantive" is very important because the present system does not really permit third parties to evoke a review procedure in relation to the substance of planning decisions, even where they have an interest. But if a third party right of appeal--or third party rights in that sense--was to be introduced, a more streamlined and unified structure would be necessary in order to avoid what would simply be an addition to the delays of the planning system.

The fourth and final pertinent reason is the development of environmental controls. Existing structures would creak at any extension of powers. The speech of the noble and learned Lord, Lord Woolf, to which reference has already been made, identifies how traditional judicial review techniques--simply looking at whether a decision is unreasonable in the judicial review sense--prevent the courts being involved in a

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more thorough-going way in environmental decisions. My recent experience with the European Charter of Fundamental Rights has driven home to me how strong a demand there is from certain quarters for an increase in environmental rights, an increase in the justiciable rights of individuals. I suspect that that is a pressure that will become increasingly difficult to resist. Therefore, to put in place a structure that could effectively cope with that, having, as my noble friend identifies, a multi-disciplinary approach--in other words, other disciplines and not just lawyers involved--would be an important step.

I fully acknowledge that these are important, difficult and delicate issues. If these proposals were to go further, they would have to be resolved. This is not a simple administrative reorganisation, but it would be a radical restructuring, particularly because one is talking about the creation of new rights and new procedures. But the importance of the issue merits a wider public debate. Therefore, I congratulate my noble friend on initiating this short debate in order to provoke a wider public debate.

8.13 p.m.

Lord Goodhart: My Lords, I am grateful to the noble Lord, Lord Brennan, for raising this extremely interesting and important issue for debate this evening. There is no doubt that environmental law is a subject which is becoming increasingly important and front-line. My question is whether it is perhaps too important to be committed to a specialist court. Environmental issues arise in many different legal fields, most obviously perhaps in planning but also in health and safety matters, in transport in toxic tort, as the noble Lord, Lord Brennan, mentioned, and indeed, as we saw the other day in the Greenpeace GM crops case, in crime. Equally, there are probably few cases which involve environmental issues exclusively.

There is a serious argument that specialist courts are best left to deal with issues which cover a relatively narrow and largely self-contained field. The noble Lord, Lord Goldsmith, mentioned construction disputes and the well-known commercial court. There are many others such as patents, admiralty or, in the tax field, General and Special Commissioners of Income Tax.

There is a significant case for the setting up of a specialist planning court. The noble Lord, Lord Goldsmith, is right to say that there are powerful arguments for making the present planning inspectorate into a planning court, perhaps along the lines of the Special Commissioners of Income Tax. However, there are certain difficulties. Planning issues raise an increasingly uneasy mixture of policy and legal issues. The noble Lord, Lord Brennan, is right to say that those personally affected by a planning application should have the right to be heard at all stages of the process. But if the Government have decided that there should be, for example, 157,000 new houses in the county of Kent, is that a political or a legal issue? It is certainly not a question which is wholly environmental. The judges who decide a

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question of that kind need to be as skilled in judicial review and human rights law as in environmental law narrowly construed.

There are other reasons why I am hesitant to endorse the full proposals made by the noble Lord, Lord Brennan. If we send environmental issues to a specialist court we will reduce the level of expertise among non-specialist judges. In the tax field--with which I have some familiarity--the effect of having tax cases of great significance decided at first instance by the special commissions means that there are few judges who have or can acquire a significant knowledge of tax law.

There is also the problem that specialist courts, when one gets to the level of a High Court, tend to be centralised in London. That goes counter to what I think is the proper direction for less centralised justice. If I may, I should like to ask whether we have a legal system which is already too far centralised. We have a system where all the High Court judges are now based in London. Those judges not in the Chancery Division are expected to go on circuit for a period of 18 weeks. It is absurd that cities such as Newcastle, Leeds, Manchester, Birmingham and Cardiff do not have their own High Courts staffed by permanent resident High Court judges, rather than being served by assize judges who are, so to speak, bused down from London.

Furthermore, the present system is one which deters lawyers from accepting office as High Court judges. The lower retiring age for judges means judges are appointed at a younger age. With the older age nowadays for starting a family, that means that people are expected to go on the Bench at an age when they still have school-age children. That is a serious deterrent to accepting appointment to the High Court, particularly for women, of whom there are still far too few. Parents will not want to spend four months a year on circuit out of London. Nor will lawyers practising in the north or Wales want to accept appointments involving a move to London, especially if their spouses, as many do, have jobs locally which they want to keep. A decentralised system would enable us to get rid of judges' lodgings and the anachronistic flummery that goes with them.

Last, and far from least--indeed, most of all--a decentralised system would mean that more big civil cases could be tried outside London, to the convenience of the parties and the witnesses.

I recognise that what I have said goes well beyond the subject of the Question and I certainly do not expect the noble Lord, Lord Bach, to reply to my comments. But I believe that a main objection to a special environmental court is that it would increase the overcentralisation of our present legal system. That objection does not apply to the conversion of the planning inspectorate into something of the nature of a court akin to the Commissioners of Income Tax. The general commissioners are widely spread across the country and it would be possible to do the same thing with the planning inspectors. But it would be considerably better to have judges in all the major

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centres who know something about environmental law than to centralise environmental cases with a relatively small number of expert judges who are likely to be based in London, at least those at the High Court or appellate level.

For that reason, although there is a good deal to be said for the proposal, we need to start by walking before we run. What is important--in this I perhaps follow the noble Lord, Lord Goldsmith, rather than the noble Lord, Lord Brennan--is that we limit ourselves initially to dealing with the particular problems of the planning system rather than have something of the nature of a specialist, all-embracing environmental court which would take up issues that went far beyond the nature of the present planning system. Therefore, at present I can offer only qualified support to the proposals of the noble Lord, Lord Brennan. Having said that, I should like to express my considerable gratitude to him for raising this important subject for debate.

8.22 p.m.

Lord Kingsland: My Lords, I thank the noble Lord, Lord Brennan, for introducing a debate on this very important topic. I say right away that, broadly, I sympathise with the noble Lord's objective and the conclusions he has reached. But it is extremely important that we do not underestimate the difficulties we face in achieving that objective.

The most fundamental difficulty is that it will require the integration of environmental law and planning law under one system. I have always taken the view that the character of environmental law is very different from planning law. Planning law is about the exercise of broad discretion within the framework of government policies, laid down in guidelines and statutory guidance, in circumstances where, in the last resort, an appeal is successful only if the party exercising the discretion acts illegally.

By contrast, environmental law is much more like black letter law. Much of it derives from directives laid down in the European Community which are then unpacked in more detail at national level. In turn, the rules then become, for the party that is subject to them, very detailed scientific guidelines, setting down the limits of substances permitted to exist in the air or in water. Not only detailed but also very expensive expert evidence is required before the court can reach a conclusion. The noble Lord will know from his experience in a related area--the law of toxic torts--just how much scientific evidence is necessary before a court can reach a conclusion. In short, the exercise and practice of planning law is often different from the exercise and practice of environmental law. If we are to group them in a single system, we have to think carefully about how we can encompass both.

My second concern is the inadequacy of existing remedies. If we do not ensure that the remedies for environmental wrongs are improved at the same time as the new court structure is established, that structure will quickly become discredited. One of the main reasons that remedies are inadequate in the

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environment areas is that the European Community system, which is at the base of much of our environmental law, has not been implemented evenly by the member states. If the member states do not implement the law effectively, an individual who is adversely affected by an environmental decision or by the failure to implement an environmental rule has to make his own way in the courts.

In relation to European Community law, that requires falling back on the doctrine of direct effect. Our own judges have been extremely reluctant to apply the doctrine of direct effect with respect to environmental directives. Indeed, it is a difficult doctrine to apply to the environmental area where concepts of property rights and so forth are extremely elusive.

Moreover, we do not, as is the case with competition law in the European Community, have a regime which the Commission itself can enforce independently of the national courts. If European law is at the heart of our environmental law in the United Kingdom, it has provided us with inadequate instruments to make it work properly.

If an environmental authority fails to enforce an environmental law, an individual may seek judicial review of that authority. However, as noble Lords are fully aware, judicial review is an inadequate way of getting at environmental decision-making by regulatory authorities. It is very rare for a judge to allow cross-examination or discovery. Here, one is faced with the same problem one finds in planning law. It is not the merits of the issue but the legality which ultimately counts.

I derive some hope from the recently signed Aarhus Convention, to which the noble Lord, Lord Brennan, drew attention. That, more than a more liberal interpretation of Bryan by our courts under the Human Rights Act, is likely to lead to a real revolution in environmental enforcement.

I hope that noble Lords will forgive me if I turn briefly to two or three paragraphs of Article 9 of the convention, the article which deals with access to justice, in order to give your Lordships some idea of how dramatic the effect of the convention could be if it is properly, fairly, honestly and honourably implemented by the government of the day. Article 9.2 states:


    "Each Party shall, within the framework of its national legislation, ensure that members of the public concerned


    (a) Having a sufficient interest or, alternatively,


    (b) Maintaining impairment of a right, where the administrative procedure law of a Party requires this as a precondition,


    have access to a review procedure before a court of law and/or another independent and impartial body established by law, to challenge the substantive and procedural legality of any decision, act or omission subject to the provisions of article 6 and, where so provided for under national law and without prejudice to paragraph 3 below, of any other relevant provisions of the Convention".

Paragraph 3 states:


    "In addition and without prejudice to the review procedures referred to in paragraphs 1 and 2 above, each Party shall ensure that, where they meet the criteria, if any, laid down in its national

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    law, members of the public have access to administrative or judicial procedures to challenge acts and omissions by private persons and public authorities which contravene the provisions of its national law relating to the environment".

I conclude by quoting paragraph 4:


    "In addition and without prejudice to paragraph 1 above, the procedures referred to in paragraphs 1, 2 and 3 above shall provide adequate and effective remedies, including injunctive relief as appropriate, and be fair, equitable, timely and not prohibitively expensive. Decisions under this article should be given or recorded in writing. Decisions of courts, and wherever possible of other bodies, shall be publicly accessible".

If properly implemented, this will give individuals direct access to the courts to deal with either the inadequate implementation of environmental regulations by public authorities or to attack, directly, environmental wrongs committed by individuals or companies. If the convention is implemented at the same time as the proposals put forward by the noble Lord, Lord Brennan, I believe that we shall have a real chance of establishing a truly credible system.

Finally, I turn to the problems raised by the noble Lord, Lord Goodhart. I have some sympathy with what he has said. At the moment, environmental law is applied in an extremely diverse way. Some of the heaviest responsibilities are borne by the magistrates' courts. In environmental prosecutions, quite significant and complex issues are capable of being heard by the magistrates. For example, under Part I of the Environmental Protection Act, disputed issues about whether a large industrial company has applied the right production technique at reasonable cost will be fought there. One can conceive of such a case, involving a great deal of expert evidence, taking many weeks or even months to determine.

It is equally true that, as regards the recently implemented Part IIA of the Environmental Protection Act in relation to contaminated land, questions about whether a landowner has brought a particular substance on to the land that has resulted in a significant risk or the possibility of a significant risk of contamination are ones of real complexity, involving, again, perhaps several weeks or months of hearing. Cases such as these will be heard in the magistrates' courts, manifesting local justice locally delivered.

Many people have criticised the fact that the previous government gave these heavy responsibilities to the magistrates' courts; but, on the other hand, I can well understand the argument put forward by the noble Lord, Lord Goodhart, that a great deal can be said for dealing with these issues in the places where the problems originally occurred. After all, that is the principle that lies behind planning inquiries. Why should it not be the principle that lies behind a new environment court as well? I do not see this as an insuperable barrier. I believe that it will be possible to develop a structure which has at its apex a single court, but which in fact works its way down so that local justice is, indeed, locally delivered.

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The noble Lord, Lord Goldsmith, was absolutely right when he said that there is growing interest in and concern about the effect of environmental wrongs on individuals' lives. I believe that those concerns will grow in importance over the next few years. The United Kingdom must respond appropriately. Once again, I thank the noble Lord, Lord Brennan, for raising this matter in your Lordships' House.

8.34 p.m.

Lord Bach: My Lords, I am grateful, as is my noble and learned friend the Lord Chancellor, to my noble friend for raising this subject. I am grateful, too, for the contributions made by other noble Lords this evening.

Debate is ongoing, not only in England and Wales but also internationally, about the optimum structures necessary for effective regulation and enforcement in the environmental field. This evening's debate, which alas has been too short, is a useful contribution to that wider discussion.

Let there be no doubt about this Government's commitment to environmental issues. The case for concern about environmental rights is compelling. Our environment affects all of us; we all share responsibility for the protection of the environment. The Government fully recognise the need for environmental rights and for citizens and the state to act upon their responsibilities to safeguard our environment.

In 1998 the United Kingdom signed the Aarhus Convention and is fully committed to ratification as quickly as possible. As has been said in the debate, the convention marks an important milestone in environmental rights. It aims at transparency in environmental decision-making and provides for improved access to environmental information and public participation.

One convention goal is to ensure, when sound environmental decisions are made through proper processes involving full public participation, that those decisions are then implemented and that environmental laws, plans and permits are adequately enforced. The convention requires that,


    "members of the public have access to administrative or judicial procedures to challenge acts and omissions by private persons and public authorities which contravene provisions of their national law relating to the environment".

In the United Kingdom we already implement this requirement in a variety of ways under a range of different Acts relating to environmental protection, land use planning and environmental health.

The Government support the "polluter pays" principle. An effective enforcement regime should ensure that no one should profit from breaking environmental protection law. As noble Lords will know, the European Commission has published a White Paper on liability for damage to the environment. There is now a debate on how to improve the implementation of the "polluter pays" principle.

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In launching the new Magistrates' Courts Sentencing Guidelines in March of this year, my noble and learned friend the Lord Chancellor said he was pleased that the guidelines highlighted environmental and health and safety cases and emphasised that the maximum fine (£20,000) should be used where appropriate. Those guidelines also include advice based on the seriousness of the offence to assist magistrates in determining whether this type of case should be heard in the magistrates' court or should be sent to the Crown Court.

This debate addresses whether we need to go further and establish an environmental court. The arguments in favour have been well put by my noble friend Lord Brennan. They are, first, that a new court would be a driver to a more proactive approach to environmental problems. Secondly, the conclusions of the European Environment Agency suggest that there has been little or insufficient development of policies to tackle key environmental problems. Thirdly, the constitutional changes, such as the implementation of the Human Rights Act, devolution and the Treaty of Amsterdam, will all work to bring environmental issues more to the fore. Lastly, the development of the environmental court concept in other European and Commonwealth jurisdictions leads in that direction.

My noble and learned friend does not believe that at present there is any consensus among the higher judiciary or elsewhere for the establishment of an environmental court. That is not to say, however, that there may not be greater scope for ensuring that cases with a strong environmental element are tried by judges specialist in this area.


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