The consultation on a new institution is very welcome, but to succeed, the new institution—whether it be a Tzar, a Committee, a Commission or an Ombudsman—will need the power to bring cases against Government of its own volition, with the resources and independence to operate freely.
Mr Gove’s answer on principles also has potential, as well as greater room for error. He is proposing to embed principles like precaution, polluter pays and sustainable development in policy, rather than law. This could sidestep the difficulties of establishing general principles in statute, but to succeed a policy-based solution would need to meet some important tests.
After Brexit, the principles of environmental law should be:
The surest way to ensure strong application is to legislate directly in the EU (Withdrawal) Bill. There are seven good amendments (NC60, NC67, 10, 101, 336, 9, NC28) that would help to preserve the force of the environmental principles in UK law after Brexit.
However, if Mr Gove chooses policy, much will depend on the model. The example of the National Planning Practice Guidance is a weak option. The NPPG requires plan-makers to have regard to national policies and guidance is a ‘material consideration’ in deciding planning applications. That is a relatively weak obligation that can be shrugged off both at the planning stage and in court.
Furthermore, the NPPG is flexible. It was completely revised in 2014 and another review is expected next year. This gives a low bar of certainty for investors and decision-makers and leaves lots of leeway for governments to adjust standards.
The National Policy Statements and the Marine Policy Statement set a higher bar. First, the NPSs have a foundation in law, with enabling legislation in the Planning Act 2008. They also have a basis in Parliamentary Procedure, with systems for public and parliamentary consultation and approval in the House of Commons Standing Orders.
There is also a precedent for a strong policy obligation in the Marine Policy Statement. The Marine and Coastal Access Act 2009 includes a duty to act in accordance with the MPS. This kind of obligation could be achieved for the environmental principles using delegated powers in the Withdrawal Bill. The MPS was also agreed by all four UK Governments, an approach that would could help satisfy the devolved administrations that the environmental principles are properly preserved.
However, an effective policy approach for environmental principles should go further still. The NPSs are linked to one Department: DCLG. An Environmental Policy Statement would need to apply across Whitehall to match the influence of the environmental principles, and be enforced by the new institution.
A policy approach could have one big advantage.
Outside the framework of the Withdrawal Bill, the Government is not bound by its own constraint that the bill is about continuity; in policy, Mr Gove can go further and apply environmental legal principles more rigorously than the EU.
His ambition to pass on our environment in better condition is difficult. To succeed, the Government will need to exceed EU environmental standards across the board. It must improve on EU policy not just in “easy areas” like farming and fishing, where the EU’s record is patchy, but also in areas where the EU leads the world, like the application of the environmental principles.
Think, for example, of the potential to use green taxation to bring new life to the polluter pays principle; think of new planning requirements for “net nature gain” in all new developments to make sustainability count. The plastic bag and landfill taxes have shown the way. Announcing a new bevy of levies on polluting activity and new green planning obligations alongside a new policy would show the UK is credible as an environmental world leader.
However it is achieved, environmental legal principles must be maintained post-Brexit. Amending the Withdrawal Bill remains the best approach. Any policy alternative must meet the six tests of rigour and be announced early in the Commons Stages. To show his resolve, Mr Gove could use the opportunity to demonstrate that the UK will set a new green gold standard in the application of environmental law. The surest way to ensure strong application of the principles is to legislate directly in the EU (Withdrawal) Bill.
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.
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