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Lord Kingsland: My Lords, I am most grateful to the noble Lord for giving way. Does the Minister believe that the fact that there is no consensus among the higher judiciary mean that the noble and learned Lord the Lord Chancellor is bound to do nothing about this matter?
Lord Bach: My Lords, I hope that the noble Lord will hear me out. Of course that does not mean to say that he is bound to do nothing, but it would be strange if my noble and learned friend were not to take considerable notice of that fact in this particular instance.
Lord Kingsland: My Lords, does the noble Lord agree that there have been times in the recent past when the noble and learned Lord the Lord Chancellor did not take any notice whatever of the majority view of his brother judges both at first instance and in the Court of Appeal, most notably in relation to the Access to Justice Act?
Lord Bach: My Lords, I do not agree with the way in which the noble Lord puts his point. If he is trying to say that my noble and learned friend has an independent nature and will make up his mind on these important matters, of course he is absolutely right.
Some proponents of an environmental court have suggested a tribunal model, encompassing civil, criminal and planning issues. In his report--which has been well quoted today--Professor Grant has suggested a number of models, some looking at a tribunal approach, others at reorganising the High Court. Some are based around the Planning Inspectorate. I do not propose to comment on those, pending the report on the Second Quinquennial Review of the Inspectorate.
There are, however, problems with a knee-jerk reaction to proposals for change. First, there needs to be careful consideration of the assumptions on which the models are based; secondly, account needs to be taken of the complex and changing context in which proposals might be implemented.
Perhaps I may briefly outline some of the issues. Is there a readily definable body of environmental law? What could be the impact of taking that out of its current context? Both these matters have been debated in part tonight.
It is far from clear that there is a consensus on the types of claim that might be included in any new jurisdiction. Indeed, the definition of environmental law for the purposes of a new court is unclear. The kind of claims put forward as "environmental" are disparate in nature. Some claims are currently heard in the Chancery and Queen's Bench Divisions, as well as within the Administrative Court. Similar claims are also dealt with in the Technology and Construction Court, as well as the lower courts. Magistrates' courts and the Crown Courts also deal with various environmental offences.
Some disputes which go through the tribunal system also have an environmental flavour. There is also the system of planning applications and appeals. Planning matters are very different from the prosecution of criminal and regulatory offences in the magistrates' courts and equally different from negligence and nuisance cases in the civil courts. Bundling them all together would inevitably affect the development of procedures to deal with them, particularly where civil and criminal remedies might be brought together. The creation of an apparently specialist jurisdiction, particularly where its definition is so uncertain, needs to be thought through with great care.
The consequential impact of separation on the quality of justice needs to be considered. The general law of contract and tort has relevance to environmental disputes as well as to other cases, while the possibility of an environmental gloss on claims not directed to the environmental court may well be lost. There would also be inevitable implications in terms of the recruitment and deployment of the judiciary, which would also carry implications for the wider administration of justice.
Arrangements are now in place in the courts to ensure that where planning appeals and applications for judicial review are being considered, the judge allocated to decide the case will usually have experience of litigation in that field. My noble and
Proposals also need to be seen in the context of the programme of change the noble and learned Lord the Lord Chancellor has introduced across the civil, criminal and administrative justice system. The introduction of the civil procedure rules represents perhaps the most fundamental reform of civil procedure in the past 150 years, not least in the introduction of active judicial case management and greater uniformity and commonality of approach. These reforms have more recently been extended to the administrative court. Following the Bowman report, new rules for judicial review have been introduced, which have also been discussed today. My noble and learned friend has appointed a lead nominated judge with a view to strengthening further the expertise of the administrative court.
I should remind the House of the two important reviews that are currently being undertaken. Sir Robin Auld's criminal courts review and Sir Andrew Leggatt's review of tribunals--both recently established by the noble and learned Lord the Lord Chancellor--may also affect the way that environmental claims are dealt with. Any proposals for changing the current court structure--for that is what we are looking at rather than any changes to environmental protection and regulation--must be considered in that context.
If the Government were to agree to the establishment of a new and separate jurisdiction, we would need to have weighed very carefully the risk of increasing the cost and complexity in the simplest cases, particularly those handled in the magistrates' courts and the county court.
As I said at the outset, the Government welcome the opportunity to debate this issue. We are not persuaded of the need for an environmental court, certainly not on its possible shape. Our discussions today have been part of a wide-ranging debate about the mechanisms necessary for countries to ensure effective environmental protection and enforcement, not least the role of courts and tribunals in this process.
I hope that I have set out some of the issues which the Government believe need to be addressed in that debate and the backdrop of radical change we have already set in train in the civil, criminal and administrative justice spheres. The Government maintain an open mind but we are not as yet persuaded that the case is made out.
The background to the amendments is that every year some hundreds of changes are made to rights of way, normally on the application of landowners. This usually involves volunteer workers and volunteer organisations making a case against the application in the public interest.
Local authorities, whose responsibility it is to deal with such changes to rights of way, have two courses open to them for dealing with closures or diversions. The first is to use the standard procedure whereby an order is made and objections are determined by an inspector asking for the advice of the Secretary of State. This is the Secretary of State's preferred course, and he has so advised local authorities. The second way--which, despite the advice of the Secretary of State, is still used by some local authorities--is by way of an application for an order in the magistrates' court.
Amendment No. 367 would have immediate effect in removing footpaths and bridleways from the jurisdiction of magistrates' courts. For some considerable time, voluntary organisations such as the Ramblers' Association, the Open Spaces Society and so on, have argued against this form of dealing with appeals. They have found that volunteer workers have had difficulty in presenting their case to the magistrates' court. Moreover, the wording of Section 116 is somewhat archaic and presents difficulty not only for voluntary organisations and volunteer workers, but for the magistrates' courts as well. On occasions, voluntary bodies have had recourse to the High Court, on appeal, when the magistrates' court had difficulty in following Section 116.
Amendment No. 340 is somewhat different in that it would not have immediate effect but gives the Secretary of State powers to issue regulations or orders covering this matter at a later date. If byways and restricted byways were immediately removed from the jurisdiction of Section 116, there would be no alternative procedure for dealing with appeals. Therefore, the amendment is worded so as to give the Secretary of State time to introduce at a later date, by way of regulation, further restrictions in relation to Section 116 to cover byways and extended byways and to look at the extension of Sections 118 and 119 to ensure that byways are covered by those two sections.