The rug was pulled from under the feet of the first substantial primary legislation on the environment since 1995 by the announcement of a December 2019 General Election. The Environment Bill had received a second reading on 28th October where it received cross party support and was whisked onwards to the committee stages in which there would have been detailed scrutiny. However, the dissolution of Parliament means it will now need to be reintroduced by the new Government.
A Bill of two halves
It is a Bill of two halves: the first necessitated by Brexit to fill the policy and national level compliance void that would result once the European Commission is removed from the picture; the second is a range of new powers to introduce targets and reforms in specific hot topic areas. Some of the reforming measures in the second half however are part and parcel of the UK implementing its current EU environmental obligations. Therefore, if there were to be a Labour victory resulting delay before a final outcome to the Brexit saga, the question arises whether the whole Environment Bill would also be caught up in that delay or whether the second half would be carried forward on its own. If the Conservatives win it seems a foregone conclusion that the Bill will simply be reintroduced in December its current form.
New Office for Environmental Protection (OEP)
The Bill as it stood would create a new Office for Environmental Protection with the objective of breathing down the neck of central Government and public authorities to ensure that they are complying with their obligations in environmental law, with the ability to demand answers if they appear to be in serious breach. This is not the job of the national environmental regulators such as the Environment Agency, which oversee compliance with regard to activities that are subject to environmental regulation such operating power stations or abstracting water from rivers. Whereas it is (currently) the European Commission that has the power to take the UK Government to the European courts for failure to meet member state limits, for example on urban air quality.
Creation of the new OEP was a concession made by former Environment Secretary of State, Michael Gove to the well-argued clammer from the environmental community that Brexit would allow the Government to escape scot free from its environmental obligations. A solution was sought, looking to other models for holding Government to account such as the National Audit Office and the Climate Change Act and Climate Change Committee. The new OEP would have the power to investigate a serious breach of environmental law by public authorities, to issue a decision notice calling for corrective action and ultimately to instigation of a new form of environmental review before the courts. The OEP would also have the right to intervene in judicial and statutory reviews commenced by others.
The new OEP will also be tasked with making sure that Ministers setting new Government policy in all areas abide by the need to ‘have due regard to’ the core principles of environmental law that come down through international law and have so far resided in the EU Treaties (but have been handily kept out of domestic UK legislation). The precautionary principle for example – “impose restrictions or avoid taking potentially harmful actions if there’s uncertainty whether they may cause serious environmental damage”. The way in which the principles are to apply is to be the subject of a statutory statement from the Secretary of State. It is rather unclear what form this will take and whether it will in fact be rather weak. Failure to have due regard will enable to the OEP to take enforcement action.
Environmental policy and targets
Beyond this the Bill provides a statutory framework for the Government to set and keep under review its environmental policy direction over a period of at least 15 years. The first national plan (for England) is actually over a 25 year timeframe and had (quite aside from the new Bill) already been issued. What the Bill adds is the need for regular progress reports to be laid before Parliament and for those reports to be scrutinised and commented on by the OEP. The Bill goes on to require the Government to set new targets in certain area: air quality, biodiversity, water and natural resources, and additionally for controlling small particulates (PM2.5) – the latter being a major concern for its ability to pass into lung tissue.
The principle of non-regression
Despite this, one of the key criticisms levied against the Bill is its failure to incorporate the principle of no watering down (“non-regression”) of existing levels of environmental protection, since the removal of that commitment as part of the Boris Johnson renegotiation of the ‘level playing field’ parts of the EU Withdrawal Agreement. Political lip-service has been paid to the concept. It remains to be seen if it gets hard-wired into the Bill when it reappears.
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