Verdict: environmental principles side-lined, a watchdog without teeth and no clarity on the future of environmental governance.
The long-awaited draft legislation on governance and principles was finally published by the Government this week (19 December), exactly a week ahead of the Boxing Day deadline set by section 16 of the European Union (Withdrawal) Act 2018.
Does the draft Bill deliver on the Government’s promise of “world-leading” environmental governance after Brexit?
Environmental principles side-lined
One of the most disappointing parts of the draft Bill is the section on environmental principles. The list of environmental principles is set out at section 2, but when you examine the Bill more closely it is not at all clear what impact (if any) these principles will actually have on policy-making and decision-making. The new statutory duty on Ministers is simply to “have regard” to the policy statement on environmental principles when making, developing or revising policies dealt with by the policy statement. That means that we will be moving from the current position where (under Article 191 of the Lisbon Treaty) environmental policy must be “based on” the environmental principles to one where the interpretation and application of the environmental principles (and the decision as to which policies the principles apply to) will be entirely controlled by the Government (because the Government will write the policy statement).
Furthermore, even once the policy statement is in place, the duty simply to “have regard” to the policy statement is a very weak one. Unless the draft provisions on environmental principles are made considerably stronger, we are at risk of being left with little more than statutory window-dressing which will do nothing to protect our environment or promote effective environmental governance.
Watchdog without teeth
Sections 11 – 29 of the draft Bill create an Office for Environmental Protection (OEP) with the power to investigate complaints of breaches of environmental law, and to issue information notices and decision notices to public bodies who break the law. Much of this framework is welcome but there are three major concerns:
The Government will completely control both the funding and the board membership of the OEP. It is not acceptable for a body created to hold the Government to account to be completely beholden to the Government for its funding and the appointment of its most senior personnel.
b) Power to bring legal proceedings
Although the OEP will have the power to issue information and decision notices, there will be no legal requirement on public bodies to comply with the decisions of the OEP. Under section 23(4) of the draft Bill, a public body in receipt of a decision notice from the OEP could simply refuse to comply with the steps outlined in the decision notice. The OEP will be able to ask the courts to enforce its decision notices using a modified form of judicial review but, if the Government is serious about wanting the new watchdog to have teeth it should, as a minimum, legislate for the watchdog’s decision notices to be legally binding.
c) No fines
The ability of the CJEU to impose fines on member states following infraction proceedings has been recognised as a powerful incentive to ensure compliance. It is disappointing that the draft Bill makes no provision for fines to be imposed on public bodies that fail to comply with the new watchdog’s decision notices.
No clarity on the future of environmental governance
Environmental campaigners have been arguing that the Government should use the Environment Bill to create a framework for setting ambitious, legally-binding targets to restore our natural environment and reverse the harm that we are currently causing to our environment (for example through the use of harmful pesticides and vast quantities of plastic waste). Although the draft Bill puts the Government’s 25 Year Plan on a statutory footing, it is entirely silent on the setting of legally binding targets. The accompanying Policy Paper promises action on air quality, nature conservation, waste and resources and water management but does little more than float the possibility of legally-binding targets:
… we will explore options for including additional cross-cutting targets for environmental improvement as part of this framework…
This is an area where the Government needs to be far more ambitious. Without legally-binding targets we will be left with mere aspirations and the risk that environmental issues will be pushed well down the political agenda, and made subordinate to other political priorities (such as the pursuit of deregulation and economic growth at all costs).
David Abrahams, Lawyer at Friends of the Earth
The opinions expressed in this blog are the author's and not necessarily those of the wider Link membership.
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