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Government consultations and proposals

In response to pressure from Greener UK on the ‘governance gap’, the Environment Secretary Michael Gove announced in November 2017 that DEFRA would consult on proposals for incorporating environmental principles into law and for establishing a new green watchdog. DEFRA launched its consultation on 10 May 2018, setting out proposals for a new Environmental Principles and Governance Bill.

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The consultation will run until 2nd August 2018 and a draft Bill will be introduced in the autumn of 2018, followed by full primary legislation in the summer of 2019. The Government’s proposals, which will apply to England and reserved matters only, are as follows:

  • The green watchdog as proposed will have 3 roles:
  1. scrutinising Government implementation of environmental legislation and progress toward legally binding targets (including retained EU targets and existing UK targets);
  2. responding to and investigating citizen complaints of alleged failure by government authorities to implement environmental law; and
  3. an enforcement function when environmental law is not effectively implemented.
  • The watchdog’s proposed enforcement powers in the consultation, however, are considerably weaker than under current arrangements. They might, for example, only include the power to issue ‘advisory’ notices to Government setting out the watchdog’s opinion when a department is failing as well as identifying potential corrective actions for the department to consider taking. The Commission, by contrast, can currently refer the UK Government to the European Court of Justice (CJEU) if it considers it is not properly implementing EU law.
  • The Government is proposing to create a policy statement explaining how environmental principles should be interpreted and applied and which the Government would then need to have regard to when developing and implementing its policies. The consultation, however, leaves open the option of whether the principles should be explicitly listed in legislation.

It should be noted that the EU Withdrawal Act will help steer the Government’s final proposals on the powers of the body and the Act itself now lists the environmental principles for the Government to include.


Environmental Principles and Governance Consultation
– Submission by Sheffield & Rotherham Wildlife Trust

Question 1. Which environmental principles do you consider as the most important to underpin future policy-making?

All of the environmental principles listed in Annex A are important for the proper development and implementation of policy and legislation and should be enshrined in law.   It should be noted, however, that Section 16 of the EU Withdrawal Act sets out which principles should be included in the proposed legislation and given legal underpinning including:

(a)the precautionary principle so far as relating to the environment,

(b)the principle of preventative action to avert environmental damage,

(c)the principle that environmental damage should as a priority be rectified at source,

(d)the polluter pays principle,

(e)the principle of sustainable development,

(f)the principle that environmental protection requirements must be integrated into the definition and implementation of policies and activities,

(g)public access to environmental information,

(h)public participation in environmental decision-making, and

(i)access to justice in relation to environmental matters.

In addition to the above environmental principles Sheffield & Rotherham Wildlife Trust would also recommend that the principle of ‘non-regression’ – whereby environmental protections are not rolled-back – is also considered for inclusion in the proposed legislation.

Question 2. Do you agree with these proposals for a statutory policy statement on environmental principles (this applies to both Options 1 and 2)?

It should be noted that the environmental principles perform a number of different roles in EU law, including guiding policy development and policy implementation, guiding the interpretation of legislation, structuring the exercise of discretion by public decision-makers, and, in some cases, providing a standard for judicial review. Environmental principles are, therefore, the bedrock of environmental law and set the terms of the debate for policy proposals.

The National Policy Statement, which will set out how to interpret the environmental principles for decision-making, should be subject to full Parliamentary scrutiny and public consultation.

The proposals, however, need to go further.  The environmental principles, which should be listed explicitly in legislation, should apply directly to all public authorities (including government agencies and the courts) and the National Policy Statement should also apply to all authorities.

Furthermore, all public authorities should have two clear legal duties with respect to the principles:

  1. A duty to directly apply the environmental principles when exercising their relevant functions
  2. A duty to act in accordance with the National Policy Statement on environmental principles


Question 3. Should the Environmental Principles and Governance Bill list the environmental principles that the statement must cover (Option 1), or should the principles only be set out in the policy statement (Option 2)?

Option 1 is preferable but is insufficient on its own.

The environmental principles should be listed explicitly within the proposed primary legislation (as required by the EU Withdrawal Act 2018) to give them statutory underpinning.  A complete list of environmental principles should be referenced.  This would ensure more permanent protection for the principles as opposed to being referenced solely in a policy statement (Option 2) which can be changed and weakened more easily.

However, Option 1 is insufficient and needs to be strengthened.  It is important that the environmental principles should apply to all public authorities, including government (all Secretaries of State and devolved administrations), government agencies and the courts.

All public authorities should also have i) a duty to apply the environmental principles directly when exercising their relevant functions as well as ii) a duty to act in accordance with the National Policy Statement. This would ensure that the principles directly influence decision-making not just via a Government approved policy statement.

Finally, it is important that the implementation of the principles should be overseen by the proposed watchdog to ensure compliance with strong remedies for non-compliance.

Question 4. Do you think there will be any environmental governance mechanisms missing as a result of leaving the EU?

Yes

The consultation identifies many of the key environmental governance mechanisms that will be missing after we leave the EU which includes:

  • Systematic reporting requirements on the implementation of environmental laws
  • Comprehensive and systematic assessment of government compliance with environmental laws and monitoring of its progress on implementation.
  • A free and accessible complaints mechanism for citizens and civil society which has the necessary resources and expertise to investigate possible breaches of environmental law
  • Strong enforcement of environment law – including the ability to initiate legal proceedings against government when it is not properly implementing environmental law and to ensure sanctions (such as fines) are in place if this continues to be the case.

Sheffield & Rotherham Wildlife Trust welcomes the recognition in table 1 and paragraph 73 of the consultation that existing domestic arrangements have their own constraints and limitations and are not equivalent to those at the EU level in terms of environmental protection.

Question 5. Do you agree with the proposed objectives for the establishment of the new environmental body?

Strong, impartial voice

Yes

In order to maintain current environmental protections it is vital that the relevant powers of EU bodies (ie. the Commission and the CJEU) are replicated like-for-like in the UK after Brexit.  A strong new impartial body will be an essential element of replicating these current functions.

A non-partisan appointment process will be important to recruit high calibre, independent and well-respected candidates who are seen as impartial.  Parliamentary committees should have a clear role in the appointment process to the board (particularly the Chair and CEO).

Independent of gov and hold it to account

Yes

It is vital that the new body is fully independent of Government and able to hold it and other public authorities to account to ensure environmental protections are properly implemented and enforced.  The body should have all the powers necessary to complete these objectives (including strong enforcement powers – see answer to question 9).

The body should report directly to and be directly accountable to Parliament.

To ensure the independence of the body it will need to be well-resourced and there should be a non-partisan appointment process to the board.  Parliamentary committees should have a clear role in the appointment process (particularly the Chair and the CEO).

Durable statutory basis

Yes

The new watchdog should be established in primary legislation, with clear functions explicitly listed, to provide a strong and durable foundation for the body.

Clear remit and avoid overlap with others

Yes

It will be important to set a clear remit for the new body.

The new body will also need to establish clear relationships with existing agencies such as the Environment Agency, Natural England, Marine Management Organisation et al and with local authorities.

It is recommended that existing bodies take on many of the reporting functions currently done at the EU level. The new body should then become a useful hub of information which is provided by other agencies/bodies rather than producing all this information itself.

Finally, the new body must also adequately join up with its counterparts in the EU over trans-boundary issues such as air and water quality, marine nature conservation, and land conservation issues in respect of the UK/EU borders with Ireland (Republic) and Spain.

Have powers and resources necessary

Yes

It is essential in order to maintain current environmental protections that the relevant powers of EU bodies (ie. the Commission and the CJEU) are replicated like-for-like after Brexit and the new body has the necessary powers to ensure its functions, such as enforcement, are carried out effectively.  As explained later in response to Question 9 the current powers proposed for the body are inadequate and represent a serious step backwards from the status quo.

It is also absolutely essential for the new body to be well resourced and to have the necessary expertise to be able to fulfil its objectives effectively.  Stable and sufficient funding arrangements should be put in place to safeguard the independence of the body.  Existing environmental bodies, such as Natural England, have over recent years seen their funding severely reduced which has significantly constrained their abilities to operate.  Robust measures (be it ring-fenced funding, funding from two government departments or direct funding from Parliament) need to be in place to ensure the same risk does not undermine the new body.  Funding should also increase in the future should future environmental legislation increase requirements on the body.

Operate in clear, transparent way and balance environmental protection with other priorities

Partial

The body should operate in the public interest in a clear and transparent way to ensure it is seen as impartial and to ensure it becomes a well-respected institution.

The new body should focus on the proper implementation of environmental legal objectives and their enforcement.  While an understanding of the wider economic and social context will be needed the body should not, however, have to ‘balance’ other non-environmental priorities with its central remit to ensure environmental legal obligations are implemented and enforced.  ‘Balancing’ policy priorities is the responsibility of other government departments and agencies – this should not be the role of the new body which should instead focus on the implementation of and compliance with environmental law.

Question 6. Should the new body have functions to scrutinise and advise the government in relation to extant environmental law?

Yes

A key function of the new body should be checking compliance with existing environmental law including legal targets and objectives.  This should include monitoring, supervising and reporting on the performance of agencies.

Providing advice on how the Government can improve its performance in terms of implementation of extant environmental law will be an important function and would fit within the body’s wider enforcement powers.

Question 7. Should the body be able to scrutinise, advise and report on the delivery of key environmental policies, such as the 25 Year Environment Plan?

Yes

An annual independent assessment of progress against the 25 Year Environment Plan would be beneficial as would advice on how to achieve the plan.

However, the central focus of the new body should predominantly be on the implementation and enforcement of existing environmental legislation.

It is also the view of The Wildlife Trusts that key elements of the 25 Year Environment Plan should receive statutory underpinning in an ambitious Environment Act (see answer to question 14) with legally binding targets as opposed to just being policy goals in the Plan.

Question 8. Should the new body have a remit and powers to respond to and investigate complaints from members of the public about the alleged failure of government to implement environmental law?

Yes

Another key function for the body should be supporting access to justice on environmental issues where the Government has failed to properly implement the law.

There should be a new mechanism, without prohibitive cost, for citizens and NGOs to bring complaints for potential breaches of environmental law.  The body should be able to respond to complaints from the public, have powers to take these on and investigate further and also cover these costs. If the body does decide to pursue a complaint by a citizen, the complainant should be involved in the ongoing proceedings.

The complaint procedure must also be able to challenge the failure to meet environmental legal objectives (i.e. address the ‘merits’ of an issue) and not just challenge the failure to follow due process (as is the case currently with Judicial Review).

Question 9. Do you think any other mechanisms should be included in the framework for the new body to enforce government delivery of environmental law beyond advisory notices?

Binding notices

Binding notices would be a powerful step along the route of ensuring compliance. In principle Sheffield & Rotherham Wildlife Trust supports a notice-based enforcement regime, providing that this means that such notices should require a public authority to comply with the law, including by setting out what steps must be taken if necessary. It will also be important that such notices are enforceable before the courts, backed with investigatory powers and the compulsion to provide information.

Intervention in legal proceedings

Yes

As argued below the new body should have strong enforcement powers including the power to initiate legal proceedings against the Government on its own.

The body should also be able to intervene in the legal proceedings brought by others and be able to contribute time and resources to these.   Otherwise, if it cannot intervene, then it will be a bystander whilst key issues on the implementation of environmental law are decided – which would be an odd position for a world-leading body to be in.

Other powers (not listed)

It is essential that all of the relevant powers of the European Commission and the CJEU are replicated like-for-like within the UK otherwise the Government’s proposals will represent a step backwards from the status quo and weaker protections for the environment.

The watchdog’s proposed enforcement powers are considerably weaker than under current arrangements.   The EU Commission can currently refer the UK Government to the CJEU if it considers it is not properly implementing EU law.  The power and ability of a well-resourced body to initiate legal proceedings as a last resort has proven to be essential in ensuring countries properly adhere to their environmental legal obligations.  If the new body is to be able to deliver on its objective of holding the Government to account then it must also have the power to initiate legal proceedings where necessary.  It should be noted that Section 16 of the EU Withdrawal Act provides a clear steer that the new body should have this power.

Furthermore, currently when the EU Commission believes a country continues to remain in breach of its obligations, despite previous judicial findings, it can refer the case back to CJEU which may then result in the country being fined.  The levying of significant fines, even the threat of fines, has proven to be effective in ensuring compliance and, where the fines are on a daily basis, to the timely resolution of an issue.

It is important that these functions are carried across.  The new body should be able to refer the Government back to court if it is still failing to abide by a judgement to ensure a fine can be imposed.  The revenues from any fine should then be placed within an environmental protection fund (ring-fenced for environmental improvements) to ensure it represents a genuine incentive to comply.  In terms of where these public funds should come from – each year the UK Government allocates a ‘Reserve’ within its Budget (currently set at £6.5 billion for 2018/19) which could become the means of meeting the fine.  The advantage of this is that it would protect departmental budgets.

Question 10. The new body will hold national government directly to account. Should any other authorities be directly or indirectly in the scope of the new body?

NDPBs

Yes – all public authorities with responsibility for making crucial decisions on the implementation of environmental law should be fully and directly within scope of the new body (ie. in terms of scrutiny, complaints and enforcement).

Non-departmental Public Bodies (NDPBs) such as the Environment Agency, Natural England and the Marine Management Organisation make fundamental decisions on how to implement environmental laws and therefore must be directly within scope of the body.

Local authorities

Yes – all public authorities with responsibility for making crucial decisions on the implementation of environmental law should be fully and directly within scope of the new body (ie. in terms of scrutiny, complaints and enforcement).

Many environmental functions and responsibilities have been given or devolved to local authorities including in areas such as air quality, biodiversity protection and waste management and therefore, to ensure proper implementation, they should be directly within the remit of the body.

Other public authorities

Yes – All public authorities, including the 15 National Park authorities, with responsibility for making crucial decisions on the implementation of environmental law should be fully and directly within scope of the new body (ie. in terms of scrutiny, complaints and enforcement).

Question 11. Do you agree that the new body should include oversight of domestic environmental law, including that derived from the EU, but not of international environmental agreements to which the UK is party?

Yes/Other.

It is important for the body to have oversight of both EU retained environmental law as well as current and any new domestic environmental legislation.

In terms of international environmental agreements the body should definitely have a full role where this has been translated into domestic legislation.   The body should also be able to review and scrutinise progress in terms of the UK meetings its internationally agreed environmental obligations.

Question 12. Do you agree with our assessment of the nature of the body’s role in the areas outlined below?

Climate Change

No

The body’s remit should include climate change adaptation issues as these have a clear link to environmental issues and the management of the natural environment.

While the Committee on Climate Change’s Adaptation Sub-committee provides independent advice on the matter it does not have enforcement powers and the new body should take on this enforcement role to ensure proper adaptation efforts are delivered.

Agriculture

Yes

The body should have oversight of all environmental law and no relevant areas that intersect with environmental issues in England (and for reserved UK matters) such as agriculture, should fall outside its remit.  As mentioned in the consultation agriculture has a significant environmental impact and enforcing legislation, such as the retained EU Water Framework Directive, will be crucial.

Fisheries and Marine Environment

Yes

The body should have oversight of all environmental law and no relevant areas that intersect with environmental issues in England (and for reserved UK matters) including fishing and marine management, should fall outside its remit.

Question 13. Should the body be able to advise on planning policy?

Yes

The new body should be able to advise on planning policy and enforce environmental law with respect to planning. However, we are concerned that the consultation appears to envisage the new body having no remit to engage with individual planning decisions. This would be problematic and would prevent the body from effectively overseeing critical parts of environmental law such as those relating to environmental impact assessment and the impact of planning decisions on air and water quality law.

We believe the new body should be tasked with a clear remit to engage with planning decisions that raise issues of a significant and strategic nature. If this function is exercised proportionately it will not result in either delay to the planning process or any adverse impact on the delivery of infrastructure or housing targets, as some have suggested.

However, if the government continues to propose that the new body should be excluded from challenging planning decisions where these are not compliant with environmental law, then this would not achieve parity with current arrangements, let alone constitute a world-leading approach.

The following are examples where intervention by the new body might be necessary in the planning field in order to ensure that:

  • The Environmental Impact Assessment Regulations are correctly followed in relation to applications for EIA development
  • The Strategic Environmental Assessment Regulations are correctly followed
  • Planning decisions are taken in accordance with the Habitats Regulations and other relevant environmental law requirements

The new body would need to restrict its role to strategic interventions, for example in relation to developments with potentially very substantial environmental impacts. There are a number of possible ways in which such interventions could be achieved:

  • Direct intervention in relation to the consideration of planning applications with substantial environmental impacts (whether those decisions are being taken by local planning authorities, the Planning Inspectorate or Secretary of State following a planning inquiry);
  • Strategic reviews of the ways in which environmental law generally is implemented through planning
  • The power to initiate statutory appeals (for example under Section 288 of the Town and Country Planning Act 1990) where a grant of planning permission (or other planning decision) has been made in a manner that the new body considers to be in breach of relevant environmental law

This would not be “another tier in the planning process” but would simply allow the new body to participate in existing planning processes in order to fulfil its remit to uphold the requirements of environmental law.

As well as providing national policy advice on the implementation of the environmental aspects of existing planning policy and suggesting future potential changes, we suggest the body could be a statutory consultee on development plans of a strategic nature, such as the new style city-region plans that are emerging and regional scale proposals, eg the Cambridge-Milton Keynes-Oxford Corridor.

The sheer scale of development associated with these initiatives has the potential to raise significant environmental challenges. The new body should also be able to advise on compliance matters relating to large scale projects that fall under the Nationally Significant Infrastructure Projects regime established by the Planning Act 2008 where these raise relevant issues.

Question 14. Do you have any other comments or wish to provide any further information relating to the issues addressed in this consultation document?

Sheffield & Rotherham Wildlife Trust has two further points it wishes to make on the consultation with regards to:

  1. Devolution; and
  2. The need for an ambitious Westminster Environment Act
  3. Devolution

The UK Government should engage openly and constructively with the devolved governments to discuss the best governance arrangements across the UK and be open to co-designing the proposed body (or even bodies). It is vital to map out which functions are best done at a UK or devolved level or both, as well as any cross-border implications.  These conversations should also extend to the crown dependencies of Jersey, Guernsey and the Isle of Man.

In addition, the environmental principles should operate at devolved level in line with existing devolved competencies agreed by all four governments.

  1. Ambitious Westminster Environment Act

Sheffield & Rotherham Wildlife Trust firmly believes that the scope of the proposed Environmental Principles and Governance Bill should be expanded into a much more ambitious Westminster Environment Act if, as the consultation states, the Government’s ambition is to be a world leader in environmental protection and to set the gold standard.

The Government has stated its ambition to be “the first generation to leave the environment in a better state than it found it” and the Prime Minister, during the launch of the 25 Year Environment Plan in January 2018, stated that “Brexit will not mean a lowering of environmental standards… We will use the opportunity Brexit provides to strengthen and enhance our environmental protections – not to weaken them.”

Indeed, even before Brexit our environment was at risk and our wildlife was sadly continuing to decline due to existing inherent systemic weaknesses so additional and ambitious actions are required.

The Prime Minister’s announcement to the Liaison Committee on 18 July that the Government was committed to introducing an Environment Bill is therefore a very welcome development.  This proposed legislation now represents a fantastic opportunity to go further in addressing the environmental challenges we face.

The proposed Bill should, in addition to legislating for the new body and environmental principles, establish a process for setting legally binding goals that ensure:

  • Air that’s cleaner and fit to breathe
  • More abundant and diverse wildlife
  • Beautiful landscapes in the places we love
  • Reduced emissions of climate changing gases
  • Efficient use of resources and elimination of waste
  • Reduction in our global environmental footprint
  • Fair access for everyone to wild places and green spaces
  • Protection from chemicals and toxic substances
  • Water of the highest quality for people and wildlife
  • Healthy and productive soils
  • Resilient ecosystems on land and at sea

Click here to take action and speak up for greater environmental protection after Brexit.

 


 

Write to your MP

If like us you think we need stronger, not weaker environmental laws, please write to your MP following the instructions in the video below. Take a photo or scan your letter (make sure you crop out your address) and share it on social media with the hashtag #writeforthewild

We know you’re passionate about local wildlife – we need you to tell your MP and ask what they’re doing to help strengthen our laws to protect it.

Find out more about what we’d like to see in the Repeal Bill on The Wildlife Trusts’ website.