Environmental governance proposals

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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 t