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Environmental legislation
Managing the environment after Brexit Government proposals for new environmental legislation after Brexit must be more ambitious than simply re-creating the status quo Martin Baxter
Growing public concern about the environment provides an important backdrop to the UK government’s current draft Environment Bill. Poor air quality, declining biodiversity, plastic waste and climate change are significant challenges that will require concerted effort and investment over the long term. Politicians are in the headlights as the public demands immediate, effective action on what are deep-rooted systemic problems – a difficult position made harder by declining levels of trust in politics. For 45 years, environmental policy in the UK has been driven by the EU. The Environment Bill comes at a critical time, as it can establish a legal framework to help replenish nature and natural capital and provide the basis for using the country’s resources sustainably. Given the scale of the environmental challenge, replicating the structures and frameworks provided by EU legislation after Brexit won’t be sufficient; maintaining the status quo isn’t an appropriate policy or political response. The draft Environment (Principles and Governance) Bill, published by the Department for Environment, Food & Rural Affairs (DEFRA) last year, includes: ••environmental principles and provisions for a policy statement ••measures relating to environmental improvement plans (EIPs) ••the creation of a new Office for Environmental Protection (OEP), whose remit will be to monitor the implementation of environmental law and, where public authorities fail to comply, take appropriate action including through the courts. The timing of publication, and to a large extent the content, was driven by environmental requirements included in the European Union (Withdrawal) Act 2018, which were introduced by amendment following stakeholder pressure. Section 16(1) required the environment secretary to publish a draft bill within six months of the 2018 Act receiving Royal Assent, a bill that would include requirements for environmental principles and the establishment of a new green watchdog. 24 Journal October/November 2019
Important questions on the draft bill and other government proposals, such as improvements to air quality and restoration and enhancement of nature, include: ••whether proposals for environmental principles and the OEP will fill the environmental governance gap when the UK leaves the EU ••what the relationship between UK and devolved governments will be in terms of their respective competences for environmental policy and regulation ••whether a framework of cross-cutting targets can provide long-term certainty for investment in environmental protection and improvement ••how to make any new environmental measures as strong as existing standards and protections ••how to ensure overall cohesion and ambition. Environmental principles are set out in article 191 of the Treaty on the Functioning of the EU and are binding on the way environmental policy is developed. The treaty requires that EU policy on the environment ‘shall 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’. The draft bill frames the application of environmental principles in a broader way. Rather than focusing solely on the development of environmental policy, which is DEFRA’s responsibility, it is proposed that all ministers will, whatever the policy, ‘have regard to the policy statement on environmental principles when making, developing or revising policies’. Much of the pre-legislative scrutiny regarding the principles has been on whether the term ‘have regard’ is sufficiently strong. Giving the policy statement more weight – for example by requiring that ministers have special regard or act in accordance with the principles – is an active issue, and will no doubt be keenly debated as the bill passes through Parliament.