A Bill for the Environment – good news? Not in its current guise…

In this blog, Public Policy Officer Matt Williams takes a look at the new government consultation an Environmental Principles and Governance Bill.  And does some reading between the lines…

©National Trust Images/Jonathan Buckley.

In mid-March we looked ahead to what a new watchdog might need to be like in order to protect our environment after Brexit. Yesterday, we learned what the Government is proposing, as well as the environmental principles they think we should bring from European law into UK law when we leave the EU.

The consultation contains some of the right jigsaw pieces, but putting them together in a makeshift way (which the consultation leaves very firmly on the table) could result in a very bleak picture and a weakening of environmental protections compared to at present.

The Government plans to make these proposals reality through a new Environmental Principles and Governance Act, a draft of which will come out this autumn. But first it wants to consult on its plans over the coming weeks.

The need for a new watchdog and for principles, stems from what is often referred to as the ‘governance gap’. Transferring environmental laws into UK law (which the Withdrawal Bill will do) is not enough to protect our environment. At present, bodies like the European Commission and the European Court of Justice can hold the UK Government to account if it fails to abide by environmental law (by taking it to court or imposing fines).

Once we leave the EU the monitoring of compliance and enforcement of this law will no longer be done by EU bodies. We need a new, robust series of monitoring and punitive measures to ensure that governments for years to come are forced to abide by environmental laws and taken to task if and when they don’t.

Principles need to be given legal status

Principles like the ‘precautionary principle’ or the ‘polluter pays principle’ are critical beacons guiding law-making and policy. They set down the ethical framework within which policy should be designed. For example, the sustainable development principle says that development should meet the needs of present generations without compromising the ability of future generations to meet their own needs.

The new consultation sets out a list of example principles but doesn’t go as far as offering a definitive list of the ones Government wants to see brought across. In addition, the consultation refers to the need for ‘proportionality’ – this means that efforts to protect the environment need to be balanced with those to create jobs, secure economic growth and foster prosperity. While these are all important, trading off environmental goals against development could undermine our natural environment.

To make them as powerful as possible, the principles need to be enshrined in law through the new Act. But in its consultation Government has suggested two options. Instead of putting the principles in the Bill itself, Government suggests an alternative is putting them in a much less robust ‘policy statement’. If the environmental principles are to form the framework for law and policy then putting them in a policy statement makes them weaker and more open to future question or change.

An effective watchdog needs teeth

The proposed watchdog has three main functions:

  • Advising and reporting on whether Government’s policy ‘has regard’ to the environmental principles and whether its policies are helping the environment.
  • Enforcing environmental law and bringing Government into line when these laws are breached.
  • Responding to complaints from members of the public about Government adherence to environmental law.

The consultation leaves unanswered the question of what form the new regulator will take. Its form will be crucial since this will determine its degree of independence from Government.

It also suggests limiting the watchdog’s remit to central Government, leaving unchecked the actions of bodies like Natural England or the Forestry Commission. If the watchdog is to be effective then it needs to be able to enforce environmental law with regards to all branches of Government.

Climate change is left out of the remit of this new body. The Committee on Climate Change already advises on climate targets and reports on Government progress. However, unlike the new watchdog, the Committee on Climate Change does not have any enforcement powers if Government misses its climate targets. This will put climate change (one of the greatest threats to our natural environment and cultural heritage) on an uneven footing with other environmental issues.

The watchdog will monitor Government’s adherence to the environmental principles, whether it is abiding by environmental law, and whether its policies are delivering for the environment. But, if the Government fails to stick to the law, then the consultation suggests that the new watchdog should have the power to issue ‘advisory notices’. This is a far cry from the ability of the current European bodies to take the UK Government to court or to issue fines. If the new watchdog is able to properly enforce environmental law then it must be given the proper power to put Government back in line.

Government plans to work with the devolved administrations of Wales, Scotland and Northern Ireland, to work out what arrangements are best in terms of principles and a watchdog body for them. Whilst devolution needs to be respected, a shared approach will be vital to protect our shared environment.

These proposals do not guarantee that we’ll get the ‘world-leading’ environmental watchdog Government has promised. The consultation offers a mix of parts that could result in a feeble legal environmental framework that can be ignored or subverted. We’ll be responding in detail to set out how we think this can be avoided. If, as the Government intends, this is to be a ‘new era for our environment’ then the draft Bill needs to set up a powerful new legal framework for holding present and future governments to account.

Matt Williams, Public Policy Officer, National Trust

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