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Brexit deregulatory power-grab tucked into core of Environment Bill

October 2019

A post-Brexit power to weaken environmental safeguards has been tucked into the Environment Bill.

Clause 79 would allow the Government to do away with EU-derived water quality targets, or change the way they are measured.

The EU Water Framework Directive was agreed 20 years ago and time is running out for Government to meet its targets. After several delays, 2027 is the final deadline for the UK’s rivers and streams to be in good condition (good ecological status). Currently, despite Environment Agency efforts, we are languishing at 14%, compared to 40% on average for our continental European neighbours.

Targets framework and air quality

The main targets framework in the bill – demanded by environmental NGOs – is a really important step forward in environmental protection. It requires legally-binding long-term targets for air, water, waste and wildlife. These measures must be strengthened to ensure enough targets are set in each area and that interim milestones have legal force, but overall it is a credit to Defra and the environmental movement that it is there at all.

Yet that step forward cannot come at the expense of current targets, which are mostly derived from the European Union.

There are a number of potential problems. On air quality, although it is excellent that targets will be set for PM2.5 (the particulates most damaging to human health), there is no guarantee that targets for other pollutants will be replaced when the EU Air Quality Directives expire in 2030. Moreover, even were that to happen, the legal repercussions of failing to meet a target could be weaker than they are currently. EU sanctions of fines and requirements for time-bound, measurable actions to return to compliance are much stronger than the proposal for a report in Clause 5.

The targets framework must be strengthened so that it goes beyond the rigour of EU-derived targets.

Water quality

On water quality, the risk is even greater.

Clause 79 gives the Secretary of State a free hand to revise the trickiest aspect of water quality in the UK: chemical quality. 79(1)(a) can adjust the chemicals that must be taken into account. 79(1)(b) can adjust the way they are measured. 79(3)(d) can adjust the classification (good/poor) of a water body on the basis of the chemicals found. In other words, all three pillars of the way the chemical status of our waters is measured could be pulled down.

Of course, there may be a good argument for this kind of “regulatory change” power, so that technical details of retained EU law can be modified outside the European Union, but this clause gives carte blanche for ministers to move the goalposts.

These risks could be lightened by strong “level playing field” guarantees, but the shift in these rules from the legally-binding backstop to the non-binding political declaration has robbed them of any legal or practical force. They could also be lightened by a robust non-regression clause for environmental standards, but that is notably absent from the bill.

Way forward

This leaves clause 79 looking like a power grab for ministers to ditch inconvenient environmental protections. There is no place for such an unqualified power in an Environment Bill.

Either the clause should be deleted entirely, or the power should be circumscribed by clear requirements for scientific advice, rigorous non-regression rules, and more stringent requirements for parliamentary scrutiny. Public consultation would surely be a necessity.

More broadly, it is time the Government gave renewed attention to why our water quality has not improved enough: pollution from farming, transport and water companies. It should reinforce the Environment Agency to help it do its job, particularly with funding to pay for inspections, and bring forward a new chemicals reduction plan to deal with some of the most persistent pollutants.

Turning round the state of nature and reversing species loss will require concerted action in every area of environmental protection – air, water, waste and wildlife. The Environment Bill is intended to deliver that certainty of integrated action for the first time. It must not be a Trojan horse for measures to weaken trickier targets.

Richard Benwell
Chief Executive, Wildlife and Countryside Link

Follow @RSBenwell

The opinions expressed in this blog are the author's and not necessarily those of the wider Link membership.