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Opinion: How will the UK protect the environment after Brexit?

The Draft Environment (Principles & Governance) Bill leaves several unanswered questions about the enforcement of the UK's replacement for EU environmental protections, writes William Wilson

On 19 December 2018 the government published draft Clauses on Environmental Principles and Governance. These are supposed to address the arrangements for the enforcement of environmental laws, and the application of environmental principles, in England after Brexit, when enforcement by the European Commission and the Court of Justice of the European Union will no longer be available.

Responsibility for the environment is devolved, and Scotland, Wales and Northern Ireland may adapt and apply these provisions differently.

Publication of the Clauses followed a consultation which produced over 175,000 responses. The draft Environment (Principles & Governance) Bill is intended to be part of a wider Environment Bill to be introduced in 2019, covering air quality, protection and enhancement of landscapes, wildlife and habitats, more efficient handling of resources and waste and better management of surface, ground and wastewater.

The Environment (Principles & Governance) Bill provides for the Secretary of State to issue a Policy Statement of the Environmental Principles to which other Ministers of the Crown must have regard. It establishes a framework for Environmental Improvement Plans, the first of which is to be Defra’s current 25-year plan. It would establish an Office for Environmental Protection (‘OEP’), which is supposed to “scrutinise environmental law and the government’s environmental improvement plan, investigate complaints on environmental law (and) take enforcement action on environmental law.”

By Brexit, the UK will lose: Treaty obligations reinforcing environmental laws; enforcement by the European Commission; enforcement by the Court of Justice of the European Union, including the ultimate sanction of fines for continuing breaches; legal requirements on government to secure that penalties for breaches are “effective, proportionate and dissuasive”; and rights of individuals to activate enforcement of environmental laws, at no cost, through complaints to the Commission.

In May 2018, Secretary of State EFRA, Michael Gove, declared that – “Our new Environmental Principles and Governance Bill is designed to create a new, world-leading, independent watchdog to hold government to account on our environmental ambitions once we have left the EU. The role which has been played in the past by the EU Commission and courts should be filled now by a UK body embedded in the UK’s parliamentary democracy.”

However in place of the robustly independent body, accountable to Parliament, that was initially proposed, the OEP would under these clauses be appointed, and funded, by the same Secretary of State.

The OEP would be able to issue an Information Notice, a Decision Notice, and eventually to make a “review application” to the High Court or Court of Session, and maybe to make a public statement about breaches of environmental law, but all mention of the powers of the European Commission to seek and the Court of Justice of the European Union to impose, a fine for non-compliance with environmental laws has been omitted.

An alternative might be to include provisions requiring a Minister and Permanent Secretary, or the Chairman and Chief Executive of a public authority, found to be in continuing breach of environmental laws to come and explain that in person to a Parliamentary committee.

The draft Clauses apply the environmental principles to the actions of Ministers and public authorities through the Secretary of State’s Policy Statement. This allows much scope for Ministerial lobbying against enforcement action, and for re-interpretation of which principles should apply and how, instead of applying the principles directly to the discharge of functions by public bodies.

The Policy Statement - “…may not deal with policies relating to— (a) the armed forces, defence or national security, (b) taxation, spending or the allocation of resources within government, or (c) any other matter specified in regulations made by the Secretary of State”.

These exemptions are unjustified, inconsistent with EU environmental law which the government has promised to transpose into national law, and with the government’s expressed ambitions.

Although enforcement arrangements will not be the same after Brexit, the real test for this part of the Environment Bill will be whether it enables and delivers the will to enforce environmental laws effectively. This is not always obvious even with the existing EU-derived law and processes. 

The Office for Environmental Protection needs to be robustly independent, not a creature of the Secretary of State. Environmental principles need to apply to actions of Ministers and public authorities directly, not filtered through a Policy Statement. The current exemptions where the principles would not apply are unjustified. Enforcement needs to be effective, and the prospect of it real. There should be a duty in English law on all public bodies to contribute to a high level of protection of the environment,

There is quite a long way to go in amending these Draft Clauses before they can be said to deliver anything equivalent to the force and enforcement of EU environmental laws.

-William Wilson is a barrister, an environmental and energy lawyer, and director of Wyeside Consulting Ltd. He can be contacted at info@wyesideconsulting.com 

-View the Parliamentary Evidence Session on the subject here.

Topic: Policy & Regulation
Tags: environment , European Union

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