European Union (Withdrawal) Bill Day 6: how many bodies will we leave behind?

December 2017

Caroline Lucas has tabled a two-part amendment (NC27) that would require Government to:

1. set out plans for a new environmental institution; and
2. identify the full range of environmental functions currently carried out by EU institutions and publish its preferred options for satisfying them post-Brexit.

By announcing a consultation on a new environmental body, Michael Gove has headed off half of this amendment. This is a welcome recognition of the “governance gap” that could open if judicial oversight carried out by EU bodies is not replicated in the UK.

However, to be successful, the Government must be transparent about the future of all of the functions that are at stake. There is much more work to be done. This week, responding to Caroline Lucas’s Written Question about which functions could be lost, the Government simply said that ‘as part of our preparations to leave the EU, we are assessing the functions carried out by EU bodies on environmental protection’.

Before our institutional future is decided, the Government should share with the House of Commons a much clearer picture of the extent of the functions that will fall on Brexit day. The breadth of possible losses is daunting. For example:

• The Court of Justice has an array of tools to cajole and correct recalcitrant governments, from warning notices to hefty daily fines. Will the new UK arrangements allow an equally powerful range of remedies?
• Commission powers include trajectory and target-setting, reporting on implementation, and raising infringement cases (independently or on citizens’ behalf) before the Court of Justice.
• The European Environment Agency plays a part in coordination of action and reporting on environmental results.
• Other more specialised functions are undertaken by institutions like the European Chemicals Agency, with regulatory and risk-management functions relating to chemicals and biocides.

Add to this any new functions needed to deliver the 25 year environment plan and the list becomes difficult to handle. The possibility of a single institution to cover all four UK administrations adds further complexity. Perhaps one UK body could carry out one discrete function across the four nations, but the possibility of one body undertaking all these distinct roles all across the UK sounds unworkable. At best there is a question of capacity and at worst a conflict of interest in expecting one institution to set goals, offer advice, report on progress and take independent legal action if rules are broken.

Any shortfall in addressing the range of environmental functions required would leave the governance gap gaping. But any single body expected to fill the entire governance gap would surely fail.

Of course, successful solutions are possible. Some functions could be given to existing UK agencies, some could be fulfilled through EU agencies as a third country partner, others could be divided between several new institutions. At WWT we proposed an Environment Commission responsible for holding Government to account and an Office for Environmental Responsibility for advisory and reporting functions, but there are many ways the jobs could be divided.

The key is clarity. Before the details of any new bodies are decided—size, independence, resources and legal standing—it will be necessary to know the Government’s intentions for the full range of functions that will fall on Brexit day.

The forthcoming consultations are a welcome opening for an Environment Act to create new green institutions and give legal standing to the principles of environmental law. To succeed, however, they must be informed by a full functional analysis and proposals for addressing the entire extent of the governance gap.

Tuesday’s debate is an important opportunity for MPs to press the Government for clarity. Only with this information available will DEFRA be able to offer an institutional future that can close the governance gap and open a path to a greener future.

Richard Benwell

Head of Government Affairs, Wildfowl & Wetlands Trust

Find Richard on Twitter @RSBenwell

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