The Environment (Principles and Governance) Bill: An overview and four unanswered questions
The UK Government has released a draft of the provisions on post-Brexit environmental principles and governance a week before the 26 December deadline enshrined in the 2018 Withdrawal Act. The clauses will eventually be included in a longer Environment Bill, due to be published in 2019.
It has taken some time to get to this point. We had originally flagged the importance of the threat of governance gaps shortly after the referendum in 2016. A further fourteen months have elapsed since Michael Gove first conceded that his government would have to act to address the environmental governance gap that will open up after Brexit day.
In this blog we provide an overview of the new clauses, drawing on our recent report on environmental policy in a devolved UK and the evidence we originally submitted to Defra’s consultation on policy principles and governance after Brexit.
The Bill lists the nine principles included in the EU Withdrawal Act: precaution, preventative action, rectification at source, polluter pays, sustainable development, policy integration, access to information, public participation in decision-making and access to justice.
However, this list does not include principles that Brexit & Environment and academic colleagues argued were needed, such as a principle on the prevention of transboundary harm. Crucially, the overarching principle committing to a high level of environmental protection found in the Lisbon Treaty is also missing.
As important as the number and definition of the principles is the way they will be used by policy makers in practice. The draft states that the Environment Secretary is required to set out how these principles will be interpreted in policy making in a separate policy statement.
However, he or she has the option to exclude policies if the principles are ‘not relevant’ or their application ‘would have no significant environmental benefit’. These are broad statements that give the Secretary of State latitude to decide if and how the principles are applied in practice. That is why Prof Maria Lee previously recommended that public authorities should be required to ‘act in accordance with’, and not simply ‘have regard for’, these principles, and that their implementation should be interpreted clearly and transparently.
The Office for Environmental Protection
The Bill creates an Office for Environmental Protection (OEP) – previously referred to informally as the ‘Green Watchdog’ – that the draft says will “…scrutinise environmental policy and law, investigate complaints, and take action where necessary to make sure environmental law is properly implemented.”
The OEP will cover England and Wales, as well as Scotland and Northern Ireland in policy areas that the government ‘reserves’ to itself. The explanatory notes state that the OEP ‘could […] exercise functions more widely across the UK’ but ‘subject to the ongoing framework discussions with the devolved administrations’
These provisions leave much room for uncertainty, and it will be incumbent on the UK Government to discuss more collaborative approaches to enforcement with all of the UK’s four nations using a genuinely consultative approach.
The OEP’s scope rests on the Bill’s definition of ‘environmental law’, namely legislation that protects, maintains, restores or enhances the natural environment. This is a broad definition and open to significant interpretation.
The Bill’s explanatory notes list examples of policy areas that would and would not fall under the OEP’s remit. The areas that are explicitly included in the remit are air quality, water resources and quality, marine, coastal or nature conservation, waste management, pollution and contaminated land. Areas that are explicitly excluded include forestry, town/country planning and people’s enjoyment of or access to the natural environment.
Notably absent from these lists are environmental impact assessment and chemicals policy. Both are significant areas of EU policy action. The former has also been the subject of a great deal of enforcement action by the European Commission and the European Court of Justice.
The Bill explicitly excludes climate change mitigation policy from the OEP’s remit ‘to avoid overlap of the subject matter with that covered by the Committee on Climate Change [CCC]’, with an exception for fluorinated greenhouse gases (F-gases).
It is therefore unclear how climate policy will be enforced after Brexit (e.g. via increased enforcement powers for the CCC).
The exception for fluorinated greenhouse gases splits oversight of climate mitigation efforts: the OEP is responsible for F-gases and the CCC is responsible for other gases. This division risks regulatory dis-alignment and overlap, which sits uncomfortably with Defra’s stated justification (‘to avoid overlap’ with the CCC) for not including climate policy in the OEP’s remit in the first place.
In addition to its roles related to monitoring, reporting and advising the government, the OEP will enforce environmental law after Brexit. It will be able to respond to complaints and begin enforcement proceedings.
The enforcement process against public authorities will begin with an information notice, where the OEP will present reasons why it believes an environmental law has been violated and request information from the authority. If the OEP feels there has been a ‘serious failure’ to comply with a law, it will be able to issue a decision notice where it ‘[sets] out suggested remedial steps for the public authority to take’. While the authority will be required to respond, it will not be ‘compelled to carry out the steps detailed in the notice.’ As a final step, the OEP may apply for judicial review from the High Court (in England, Wales and Northern Ireland) or the Court of Session in Scotland.
This process is similar to its EU equivalent, the infringement procedure, where the European Commission (playing a similar role to the OEP) enforces environmental law against EU member states and can take cases to the Court of Justice of the European Union (playing a similar role to the UK courts). However, there are important differences: EU member states must comply with the procedure under the EU Treaties, and in later stages of the process the Commission can recommend significant fines. As noted by the ENDS Report, Defra says that fines ‘could be counterproductive’ if used by the OEP because they would reduce departmental budgets.
We have described fines as the new watchdog’s sharpest teeth. Although fines are by no means straightforward to apply in a domestic political setting, there is merit in giving their role more thought before they are removed from the toolbox of environmental policy.
Finally, the Environment Secretary appears to have the authority to appoint the OEP’s members and decide on its resources, raising concerns about the Office’s independence from the government it is supposed to hold to account. The House of Commons Environmental Audit Committee had previously recommended that the OEP should report directly to Parliament.
Four unanswered questions
Although detailed, the Environment (Principles and Governance) Bill leaves at least four questions unanswered.
How will Parliament amend the Bill? The separate publication of this Bill in 2018 is a direct result of amendments to the EU Withdrawal Act. This serves as a useful reminder that the Bill is the beginning of a long, and potentially contentious, passage through Parliament.
When will the Bill come into force? Under the yet-to-be-approved UK-EU Withdrawal Agreement, the Bill would only take effect at the end of the transition period (scheduled for 31 December 2020 but extendable to 31 December 2022). However, under a no-deal Brexit, the Bill’s provisions need to be ready by 29 March 2019. However, the full Environment Bill (of which the principles and governance clauses are a part) is currently not due until Spring 2019. In a related policy paper, the UK Government has stated that the OEP will be created ‘as soon as possible’ in a no-deal scenario. But it is unclear how soon that would be possible, and will therefore create a high risk of significant environmental governance gaps.
How will Defra interpret the Bill’s provisions? The Bill gives the UK Government wide latitude to interpret many of its provisions, e.g. when and how environmental principles are applied. As a result, many important environmental decisions will be made through internal departmental processes and low-profile implementation via statutory instruments. If true, it would provide further evidence that the UK wishes to return to the informal, incremental style of policy making that had prevailed prior to EU membership. For those who have become accustomed to the EU’s style of working (clear targets, strong enforcement powers and very limited derogations) this may come as a culture shock, raising issues of transparency and public participation (which, ironically, are included in the list of environmental principles).
What will the EU’s reaction be? The Withdrawal Agreement contains detailed, enforceable UK commitments to create a well-resourced, independent OEP. Even under a no-deal scenario, the EU is likely to push for assurances on these issues in any future trading relationship. The backstop component of the draft Withdrawal Agreement requires the UK to set up independent body or bodies covering the entirety of the country: as the OEP stands it fulfills only part of that requirement in terms of territorial extent. This could constrain the UK Government’s ability to push through the new clauses unamended and offer critics leverage in the parliamentary process. As a result, the EU’s actual or expected response may prove crucial in the design of these aspects of post-Brexit environmental governance.
About the authors
Professor Charlotte Burns is a Professorial Fellow in the Department of Politics, University of Sheffield. Brendan Moore is a Senior Research Associate at the University of East Anglia and the Brexit & Environment network coordinator. Professor Andy Jordan is a Professor of Environmental Sciences at the University of East Anglia. Dr Viviane Gravey is a Lecturer in European Politics at Queen’s University Belfast. Professor Richard Cowell is Professor of Environmental Policy and Planning at Cardiff University.
Photo courtesy of Pixabay.