ClientEarth Re clause 37(8) of the Environment Bill

The document argues that clause 37(8) of the Environment Bill would severely undermine the efficacy of the environmental review process by imposing a mandatory restriction on the High Court's ability to grant remedies, even in cases of serious environmental law breaches.

• The Office for Environmental Protection (OEP) is established as a statutory, independent watchdog tasked with holding the government accountable for environmental law and improvement plans after the UK's exit from the EU.
• The 'environmental review' process allows the OEP to bring legal proceedings to the High Court to determine if a public authority failed to comply with environmental law, provided the OEP considers the failure to be serious.
• Clause 37(8) of the Bill restricts the court from granting any remedy (except a statement of non-compliance) if the remedy would likely cause substantial hardship or prejudice to a third party, or be detrimental to good administration.
• The authors argue that clause 37(8) creates a perverse incentive where larger, more expensive infrastructure projects with higher potential for environmental harm are more likely to be shielded from remedies because their scale increases the likelihood of 'substantial hardship' or 'prejudice' to developers.
• The document asserts that clause 37(8) is a 'mandatory fetter' on judicial discretion that differs fundamentally from section 31(6) of the Senior Courts Act 1981, which only guides discretion in cases of undue delay.
• The authors conclude that the environmental review process is rendered 'largely ineffective' by clause 37(8), which may lead potential complainants to continue using traditional judicial review instead of the OEP route.
• The advice suggests that the objectives of protecting third parties and good administration could be achieved by removing clause 37(8) and relying on the existing principles of judicial review under clause 37(9).

APA

QC, S. T., & Thomas, G. (n.d.). ClientEarth Re clause 37(8) of the Environment Bill. ClientEarth. https://www.clientearth.org/media/cumm1lqk/clientearth-environment-bill-advice.pdf

Chicago

QC, Stephen Tromans, and Gethin Thomas. ClientEarth Re clause 37(8) of the Environment Bill. ClientEarth, n.d. https://www.clientearth.org/media/cumm1lqk/clientearth-environment-bill-advice.pdf.

Wikipedia

{{cite report |last1=QC |first1=Stephen Tromans |last2=Thomas |first2=Gethin |title=ClientEarth Re clause 37(8) of the Environment Bill |publisher=ClientEarth |url=https://www.clientearth.org/media/cumm1lqk/clientearth-environment-bill-advice.pdf |access-date=23 October 2026 |via=Climate Insights Directory}}

BibTeX

@techreport{qcndclientearth, author = {QC, Stephen Tromans and Thomas, Gethin}, title = {{ClientEarth Re clause 37(8) of the Environment Bill}}, institution = {ClientEarth}, url = {https://www.clientearth.org/media/cumm1lqk/clientearth-environment-bill-advice.pdf}, urldate = {2026-10-23}, note = {Indexed by Climate Insights Directory} }