A new post-Brexit environmental watchdog: The importance of context

One of the few Brexit-related issue on which a certain level of consensus seems to be emerging is the need to secure some sort of independent body which will be able to oversee the government’s environmental decision-making post-Brexit. When giving evidence before two separate parliamentary committees in November last year, Michael Gove, the Secretary of State for Environment, Food and Rural Affairs, surprised many when he aired plans for creating an ‘EU Commission-like body’ to supervise UK environmental law post-Brexit. To this effect, the Government has now published its consultation on Environmental Principles and Governance after the United Kingdom Leaves the European Union. Two points stand out in the government’s consultation.

First, it is clear that the government does not actually favour an ‘EU Commission-like body’ to oversee its post-Brexit environmental law. Instead, it appears to favour an altogether different type of body, one which lacks the formal powers of enforcement which the European Commission enjoys against member states which fail to implement EU law (most importantly the ability to take legal action before the European Court of Justice, which can ultimately hand down fines against member states). Instead the government seems to favour a body which can offer general scrutiny and advice as well as feedback to the government. And were members of the public and non-governmental organisations to be granted the right to submit complaints against the government to the new body, the government’s intention is that the body would be able to admonish the government informally through a ‘declaration’. From the government’s perspective, the preference for a body which would operate on a less formal and less binding basis is understandable. After all, why create a body which would be able to, for example, hand down fines against the government or order it to change its policies and interpretations of the law?

The unwillingness to replicate the enforcement powers of the European Commission in post-Brexit domestic environmental law has naturally been heavily criticised. And those who see the government’s proposal as toothless and as lacking in force have found support in light of the government’s diffidence when it comes to the problem of urban air pollution. In a recent court case against the government, brought by the environmental organisation ClientEarth, the government admitted that its proposed date in 2020 for coming into compliance with EU limits on air pollution (as opposed to an earlier date) was that 2020 was likely the earliest time at which the Commission would be in a position to levy infraction fines against the UK. Critics may well think ‘so much for leaving the environment in a better state than the one in which it was inherited.’

Second, against this it must be borne in mind that the EU’s approach to accountability and enforcement of environmental law is in itself far from perfect. Though members of the public can submit complaints to the Commission against member states, there is famously no right for members of the public to bring court cases against the EU itself in the context of the EU’s general environmental decision-making. It must also be borne in mind that trying to emulate the unique governance system of the EU on the domestic level would not necessarily work well. Instead, the various methods and systems of oversight and enforcement of environmental law found in the law of the EU and the laws of members states reflect the unique legal, administrative and cultural circumstances in each jurisdiction. Often these methods have emerged gradually as a result of historical and political developments (the emergence of the first ombudsman institutions in some Scandinavian countries is a good example of this). As demonstrated by the UK Environmental Law Association’s Brexit work, there is an abundancy of diversity when it comes to accountability mechanisms in other jurisdictions in terms of institutional designs and different models. These include ombudsman and ombudsman-like institutions, focusing exclusively on environmental matters, specialist environmental courts and tribunals, parliamentary commissioners, and administrative appeal boards.

Consequently, it is important that a post-Brexit environmental body in the UK is not just an attempt to copy/paste from other jurisdictions but represents an appropriate response to the unique challenges posed by Brexit as well as the specific circumstances of post-Brexit Britain. A new body could therefore, for instance, reflect a balance between the traditional British reliance on a robust and highly regarded judicial system supervising administrative decision-making of public authorities, coupled with a recognition that access to the courts is increasingly prohibitively expensive for individuals. A new body could therefore be entrusted not with the powers to hand down fines on the government (a feature famously also lacking in many other jurisdictions) but the ability to bring judicial proceedings against the government on behalf of the public. Additionally, the practical circumstances emerging from post-Brexit Britain may give rise to a need for several separate bodies in the UK, overseeing environmental law across the devolved administrations where there is a real desire for differentiation in environmental law and policy in light of Brexit.

By Dr Ole Pedersen, Reader in Environmental Law at Newcastle University Law School.

Image source can be found here.

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