Consultation on post-Brexit environmental principles and governance

Angus Evers, a partner at Shoosmiths, considers the government’s consultation on a new Environmental Principles and Governance Bill to ensure that protection of the environment will not be weakened after Brexit.

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What is the background leading up to the launch of this consultation?

The government has recognised that, after the UK leaves the European Union (EU), the environmental principles currently contained in Article 191(2) of the Treaty on the Functioning of the European Union (TFEU) will no longer apply in the UK, as the EU treaties will not be retained as part of domestic law under the European Union (Withdrawal) Bill. The monitoring and enforcement functions currently carried out by the EU Commission and the Court of Justice of the European Union will also be lost following the UK’s departure from the EU.The government has repeatedly stated its ambitions to ensure that it leaves the environment in a better state than when it inherited it and to ensure that new mechanisms are put in place to not only maintain, but also strengthen, protection for the environment after the UK leaves the EU. The Department for Environment, Food and Rural Affairs (Defra) therefore published a consultation on 10 May 2018 that seeks views on incorporating environmental principles into the policy and legal framework in England, and on the creation of a new, independent and statutory body to hold the government to account for the environment.

What are the key proposals made in the consultation?

The consultation is divided into three parts, which include environmental principles, accountability for the environment and overall environmental governance.

Environmental principles

The consultation notes that there is no single agreed definition of environmental principles, but that a number of internationally recognised principles (for example, the precautionary principle and the polluter pays principle) have been developed that help shape environmental policy around the world. The TFEU also sets out environmental principles as general objectives for the EU. Article 191(2) of the TFEU requires EU environmental policy to be based on the precautionary principle and on the principles that preventive action should be taken, that environmental damage should as a priority be rectified at source and that the polluter should pay.

Where the environmental principles set out in the TFEU are contained in specific pieces of EU legislation, the government proposes to maintain them as part of the UK’s domestic legal framework through the European Union (Withdrawal) Bill. However, the government notes that while environmental principles are central to government policy, they are not set out in one place. The consultation therefore proposes two possible options for creating a new policy statement setting out the environmental principles which will guide environmental policy-making and legislation.

Option one involves the environmental principles being listed in the Environmental Principles and Governance Bill, with a statutory policy statement being made under that legislation to explain how they should be interpreted and applied. Under option two, the Environmental Principles and Governance Bill would not list the principles itself, they would be set out and explained only in the statutory policy statement.

For both options, the government would be required to consult on the draft policy statement and on future changes to it, and present the draft statement to Parliament for scrutiny. The new environmental body (see below) would be given functions relating to the policy statement, including scrutinising how government has had regard to the policy statement, periodically advising departments on possible improvements and, if necessary, taking action to ensure that the legal requirement for government to have regard to the policy statement has been met.

Accountability for the environment

To fulfil the roles which are currently played by the EU Commission and the Court of Justice of the European Union, the consultation is proposing the creation of a ‘new, world-leading, independent environmental watchdog to hold government to account on our environmental ambitions and obligations once we have left the EU’. The consultation considers the current EU and national arrangements for environmental oversight, enforcement and accountability. At an EU level these comprise:

  • the EU Commission
  • the European Environment Agency
  • the European Parliament
  • the Court of Justice of the European Union

At a domestic level these comprise:

  • parliamentary committees (the House of Commons’ Environment, Food and Rural Affairs Committee, the House of Commons’ Environmental Audit Committee, the House of Lords’ EU Energy and Environment Sub-Committee and the House of Lords’ Select Committee on the Natural Environment and Rural Communities Act 2006)
  • the National Audit Office
  • advisory committees (the Natural Capital Committee, the Joint Nature Conservation Committee, the Committee on Climate Change and the Adaptation Sub-Committee)
  • ombudsmen (the Parliamentary and Health Service Ombudsman and the Local Government and Social Care Ombudsman)
  • judicial review
  • enforcement by bodies such as the Environment Agency and Natural England

The consultation proposes three main functions for the new environmental body—providing general scrutiny and advice, responding to complaints and enforcing government delivery of environmental law. While the consultation considers a range of enforcement mechanisms for the new environmental body, such as powers to issue advisory notices requesting compliance, binding notices brought by others and the ability to agree environmental undertakings with government authorities that have failed to meet their environmental responsibilities, there are no proposals that the new body should have the power to bring court proceedings against the government on its own initiative.

In regards to the subject matters covered by the new environmental body and its remit, the consultation proposes that it should cover EU environmental law retained under the European Union (Withdrawal) Bill and domestic environmental law not based on EU legislation, but international environmental law. The main area proposed to be excluded from its remit is climate change (which would remain within the remit of the Committee on Climate Change).

Overall environmental governance

In terms of overall governance on the environment for England, the consultation proposes that the new environmental body:

  • could provide independent advice and recommendations to government on setting environmental policy, but would not be responsible for setting environmental policy
  • would not be responsible for the delivery or monitoring of environmental policy measures, but could scrutinise and potentially enforce delivery and use monitoring information from others in its activities
  • would not be responsible for undertaking implementation reporting, but could use implementation reports from others in its activities
  • would not be responsible for reporting on the delivery of the 25–year environment plan, but could conduct independent scrutiny of the progress reported
  • could be responsible for investigations in response to complaints or concerns over environmental law delivery
  • could be responsible for taking action to require government delivery of environmental law

The consultation proposals apply to England only. What is the position in regards to the devolved administrations?

The government’s starting point is that the subject matter covered by the new environmental body should comprise England and environmental matters that are not devolved. However, the consultation also states that the statutory statement of environmental principles and the new environmental body could, subject to the ongoing framework discussions with the devolved administrations, apply more widely across the UK.

In your view, will the proposals adequately meet the various concerns that have been raised about maintenance of environmental standards post-Brexit?

The consultation is a welcome move to try to allay the concerns expressed by environmental groups and members of the public that the UK will lower its environmental standards after leaving the EU. Filling the governance gap left by the EU Commission and Court of Justice of the European Union will be difficult and the consultation’s proposals are a bold attempt to try to seize the once-in-a-generation opportunity to improve and enhance environmental policy and environmental law in the UK. However, it appears that the proposed new environmental body would not have any powers to take court proceedings against the government on its own initiative to hold the government to account and would be reliant on intervening in court proceedings brought by others against the government. Such court proceedings would usually be judicial review proceedings, which can be expensive to bring, require the claimant to have sufficient interest in the proceedings and do not allow for any examination of the merits of the decision being challenged.

What are the next steps and proposed timings?

The consultation closes at midday on 2 August 2018. Depending on the responses received, the government is then proposing to publish a draft Environmental Principles and Governance Bill in the autumn of 2018, and to introduce the Bill into Parliament early in the second session of this Parliament.

Angus Evers leads Shoosmiths’ environmental practice. He is one of the Convenors of the UK Environmental Law Association’s waste working party and a fellow of the Royal Society of Arts. He is also a member of the British Standards Institution’s Committee on Sustainable Resource Management.

Filed Under: Environment

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