Exiting the European Union (EU)
12 On 1 January 1973, the UK joined the European Economic Community, now the European Union.
13 On 17 December 2015, the European Union Referendum Act 2015 received Royal Assent. The Act made provision for holding a referendum in the UK and Gibraltar on whether the UK should remain a member of the EU. The referendum was held on 23 June 2016 and a majority voted to leave the EU.
14 The European Union (Notification of Withdrawal) Act 2017 received Royal Assent on 16 March 2017. On 29 March 2017, the Prime Minister gave notification of withdrawal of the UK from the EU under Article 50(2) of the Treaty on European Union. The European Union (Withdrawal) Act 2018 received Royal Assent on 26 June 2018. Section 16 of the Withdrawal Act required the Secretary of State to publish a draft Bill to make provision for a new environmental governance body and a requirement for Ministers of the Crown to have regard to a new policy statement on environmental principles when making policy following the UK’s withdrawal from the EU.
15 The European Union (Withdrawal Agreement) Act 2020 received Royal Assent on 23 January 2020, ratifying the Brexit Withdrawal Agreement.
Part 1: Environmental Governance
16 The Draft Environment (Principles and Governance) Bill 2018 was published for parliamentary pre-legislative scrutiny on 19 December 2018, fulfilling requirements for publication of a draft Bill under section 16 of the European Union (Withdrawal) Act 2018. Part 1 of this Bill updates that Draft Bill in light of pre-legislative scrutiny reports by the Environment, Food and Rural Affairs Select Committee and Environmental Audit Committee in the previous parliament, which were published on 30 April 2019 and 24 April 2019 respectively. The government of the day responded to these reports when it introduced its Environment Bill, which the current Bill largely takes forward, in October 2019.
17 Most of the UK’s environmental law and policy derives from the EU, and EU structures and processes provide for oversight and enforcement. The Bill sets out the measures needed to ensure that there is no environmental governance gap on withdrawal from the EU. The Bill will require the setting of long-term, legally binding and joined-up targets tailored to England, embed consideration of environmental principles in future policy making and establish the independent Office for Environmental Protection.
18 The Bill places a statutory requirement for government to prepare and maintain an Environmental Improvement Plan (EIP), the first being the 25 Year Environment Plan published in January 2018, and creates a new statutory cycle of monitoring, planning and reporting to ensure continuing improvement to the environment. It also establishes a new framework for setting long-term, legally binding and joined-up targets (covering at least air quality, resource efficiency and waste reduction, water and biodiversity). As part of the framework for setting targets, the Bill will include a specific duty to set a target for annual mean concentrations in ambient air of the air pollutant of greatest harm to human health: fine particulate matter (PM2.5).
19 The Bill legislates for environmental principles to protect the environment from damage by making environmental considerations central to the policy development process across government. The principles work together to legally oblige policy-makers to consider choosing policy options which cause the least environmental harm. The Statement on Environmental Principles will set out how the principles should be interpreted and applied by policy makers.
20 The Bill also creates a new public body – the Office for Environmental Protection (OEP) – as a domestic independent watchdog who will be responsible for taking action in relation to breaches of environmental law. Through its scrutiny and advice functions, the OEP will monitor progress in improving the natural environment in accordance with the government’s domestic environmental improvement plans and targets. It will be able to provide government with written advice on any proposed changes to environmental law. Through its complaints and enforcement mechanisms, the OEP will take a proportionate approach to managing compliance issues relating to environmental law.
21 Ministers will be required to make a statement to Parliament setting out the effect of new primary environmental legislation on existing levels of environmental protection provided for by environmental law. These statements will be published and open to scrutiny by Parliament, environmental stakeholders and the broader public as the propose new primary environmental legislation pass through Parliament.
22 The Bill also includes a commitment to review the biggest developments in environmental legislation from around the world every other year and use the findings when considering the UK’s own environmental plans.
Part 2: Environmental Governance: Northern Ireland
23 Under the Northern Ireland Act 1998, the Northern Ireland Assembly has legislative competence for a number of areas of law. The Department for Agriculture, Environment and Rural Affairs has requested that the Bill include provision to allow the Office for Environmental Protection (OEP) to exercise its functions in Northern Ireland, subject to the approval of a restored Northern Ireland Assembly.
24 The Environment Bill sets out measures that would provide the OEP with equivalent powers in England and Northern Ireland, and ensure that operationally it can function across both administrations. In some cases, this has meant providing for slightly different processes that reflect the different legal and policy frameworks. In others, it has meant ensuring appropriate Northern Ireland representation, for example on the board of the OEP.
Part 3: Waste and Resource Efficiency
25 In the 25 Year Environment Plan, government committed to using resources from nature more sustainably and efficiently, and to minimising waste. In December 2018, the previous government published its Resources and Waste strategy, Our Waste, Our Resources: A strategy for England to help move towards a more sustainable, circular economy. Waste management is based on a ‘waste hierarchy’, which sets a priority order when shaping waste policy and managing waste. It gives top priority to preventing waste in the first place. When waste is created, it gives priority to preparing it for re-use, then recycling, then recovery, and last of all disposal (for example, landfill). The Bill will provide the legislative framework needed to deliver on many of the commitments in the Resources and Waste Strategy, by introducing new powers and amending existing legislation such as the Environment Act 1995 and Environmental Protection Act 1990.
26 New powers in this Bill allow for obligations to be placed on producers in relation to the re-use, redistribution, recovery and recycling of products. These powers replace and update producer responsibility measures in section 93 to 95 of the Environment Act 1995 and Producer Responsibility Obligations (Northern Ireland) Order 1998, which are now both repealed. These changes also clarify that producer responsibility obligations can include prevention of waste and redistribution, making it clear that action can be taken on food waste. Producer responsibility schemes are already in place for four waste streams (including packaging waste), putting a level of financial responsibility on producers for their goods at end of life. The Bill also allows government to require producers to pay the full net cost of managing their products at end of life to incentivise them to design their products with sustainability in mind, with the aim of ultimately reducing consumption of raw materials. The previous government consulted from 18 February to 13 May 2019 on reforming the UK packaging producer responsibility system and received 679 responses. Reforming the UK packaging producer responsibility system: summary of responses and next steps was published on 23 July 2019.
27 Once in force, the Ecodesign for Energy-Related Products and Energy Information (Amendment) (EU Exit) Regulations 2019 will amend the Ecodesign for Energy-Related Products Regulations 2010 to allow for mandatory product standards (which may relate to energy efficiency and resource efficiency) to be set by the government for energy-related products. The Bill complements these provisions by enabling resource efficiency standards to be set for non-energy-related products. The Bill will also allow for clear labelling to enable consumers to identify products that are more durable, repairable and recyclable. These measures are aimed at reducing consumption of materials.
28 The Climate Change Act 2008 makes provision for charging for the supply of single-use carrier bags. The introduction of a 5p plastic bag charge in England in 2015 has resulted in a 90% decrease in plastic bag sales by main supermarket retailers. The Bill allows for the introduction of charges for any single-use plastic item.
29 The Environmental Protection Act 1990 underpins local authorities’ duty to collect household waste in England from domestic properties. Current arrangements ensure that every local authority collects some recyclable materials. Local authorities, however, do not all collect the same range of materials, which has caused confusion as to what can be recycled. The Bill stipulates a consistent set of materials that must generally be collected individually separated from all households and businesses, including food waste. The previous government consulted from 18 February to 13 May 2019 on consistency in household and business recycling collections in England and received 1713 responses. Consistency in recycling collections in England: executivewas published on 23 July 2019.
30 The Bill also allows for the introduction of deposit return schemes where consumers pay an up-front deposit when they buy an item (such as a drink in a bottle or can), which is then redeemed on return of the used item. These schemes can increase recycling and reuse, and reduce littering. The previous government consulted from 18 February to 13 May 2019 on introducing a Deposit Return Scheme for drinks containers in England, Wales and Northern Ireland and received a total of 208,269 responses. Introducing a Deposit Return Scheme (DRS) in England, Wales and Northern Ireland: summary of responses was published on 23 July 2019.
31 The rules for transporting, storing or disposing of waste include the general requirement to have an environmental permit if disposing of or recovering waste and the requirement for carriers, brokers of or dealers in waste to register with the Environment Agency. Illegal waste activity was estimated to have cost the English economy over £600 million in 2015. The Bill will help prevent waste crime by modernising the regulatory framework; deter waste crime by ensuring regulators can take effective enforcement action; and detect waste crime by allowing for electronic waste tracking.
32 The Bill also contains measures to improve the proportionality and fairness of enforcement against littering, as part of the continued delivery of the Litter Strategy for England.
Part 4: Air Quality and Environmental Recall
33 The UK has legally binding targets to reduce overall national emissions of five air pollutants (fine particulate matter, ammonia, nitrogen oxides, sulphur dioxide, and non-methane volatile compounds) by 2020 and 2030. The previous government committed to delivering clean air in the 25 Year Environment Plan, and consulted on a draft Clean Air Strategy (CAS) in May 2018, which received 711 responses. The final CAS was published in January 2019. It sets out the comprehensive actions required across all parts of government to improve air quality, at both the national and local levels, including by setting new and ambitious goals, bringing forward targeted legislation, investment and policies. This Bill implements key proposals outlined in the Strategy, enabling greater local level action on air pollution, to tackle key sources of pollutants, which will help the UK achieve its overall national emission obligations.
34 The Environment Act 1995, the Clean Air Act 1993 and the Environmental Protection Act 1990 establish frameworks for local authorities to address air quality. In its manifesto, the government committed to introducing strict new laws on air quality, and introducing new environmental targets, including for air quality.
35 The Environment Act 1995 establishes the Local Air Quality Management Framework, under which local authorities have obligations to assess and manage the quality of the air in their areas. Where specified standards and objectives are not being met, authorities are required to declare Air Quality Management Areas and then prepare action plans. Amendments made to this Act by the Bill will strengthen these duties by giving greater clarity on the requirements of action plans enabling greater collaboration between local authorities and all tiers of local government, as well as with Relevant Public Authorities, in the creation and delivery of those plans. It will also require the Secretary of State to regularly review the National Air Quality Strategy, which specifies the standards and objectives that local authorities need to achieve.
36 Part 3 of the Clean Air Act 1993 is the UK’s main legislative framework for the control of pollution from domestic solid fuel burning, the single biggest source of fine particulate matter emissions in the UK. Part III gives local authorities the power to make an order designating parts of their area as Smoke Control Areas (SCAs), in which it is an offence to emit smoke from chimneys of buildings and chimneys that serve the furnace of any fixed boiler or industrial plant. The amendments through the Bill will enable local authorities to issue civil financial penalties instead of criminal prosecutions, making enforcement quicker, simpler and more proportionate. It will strengthen the existing penalties for the sale of controlled solid fuels in SCAs and ensure consumers are aware that it is an offence to buy these fuels for use in SCAs. It will also give authorities the power to broaden the scope of their SCAs to include moored inland waterway vessels.
37 Part 3 of the Environmental Protection Act 1990 stipulates what can constitute a statutory nuisance. This includes smoke from premises, except private dwellings in SCAs which are exempt. The amendment of this Act by the Bill will remove this exemption in England so that a local authority will be able to pursue somebody who emits smoke from private dwellings in SCAs where it is prejudicial to human health or causing a nuisance.
38 Measures in this Part will also enable the Secretary of State to compel manufacturers of vehicles, vehicle components and Non- Road Mobile Machinery (NRMM) to recall their products for reasons of environmental failure.
39 In late 2015, government became aware that vehicles on the road in the UK were emitting more NOx (a controlled pollutant) than their emission test results would suggest. This was a result of software fitted to the vehicles. The situation highlighted the limits of the government’s powers to compel a recall of vehicles or engines for NRMM for reasons of environmental non-conformity or failure. This is in contrast to the government’s power to compel a recall of any product (including road vehicles and NRMM) on the basis that it is a "dangerous product" (or "not a safe product") pursuant to the General Product Safety Regulations 2005 (2005/1803).
Part 5: Water
40 The water industry was privatised in 1989 pursuant to the Water Act 1989. The regulatory regime for the privatised water industry is principally set out in the Water Industry Act 1991, and amendments made to that Act (notably in 2003 and 2014). Water abstraction licensing was introduced in the 1960s; the licensing regime is principally set out in the Water Resources Act 1991 and enables regulators to act to protect the environment and the needs of water users. The legislative regime providing for flood risk management by the government and other public authorities is set out in various pieces of legislation; the principal primary legislation relating to the powers and duties of internal drainage boards is the Land Drainage Act 1991.
41 Government committed to delivering clean and plentiful water and reduced risk of harm from environmental hazards in the 25 Year Environment Plan. To contribute towards this, the previous government launched a consultation (Improving our Management of Water in the Environment), which ran between 15 January and 12 March 2019. The consultation received 298 responses. Improving our management of water in the environment: summary of responses and government response was published on 23 July 2019.
42 The Bill sets out measures to provide for policy outcomes for water resources, drainage and flood management through:
● improved water resources planning, which facilitates collaborative regional planning and considers the needs of all sectors of water users, including the environment;
● placing on a statutory footing drainage and wastewater planning to assess risks to sewerage networks and network capacity;
● modernising water regulation by reforming elements of the abstraction licensing regime to link it more tightly to the government’s objectives for the water environment; and
● enabling updates to be made to the valuation calculations relevant to the apportionment of internal drainage board (IDB) charges in secondary legislation, allowing for the creation of new or expansion of existing IDBs where there is a local desire to do so.
43 It also includes measures to protect water quality in our surface and groundwater, by enabling updates to the lists of priority substances that pose a threat to water bodies in line with the latest scientific knowledge, in the absence of powers under section 2(2) of the European Communities Act 1972.
Part 6: Nature and Biodiversity
44 Nature is in decline, much of England’s wildlife is deteriorating, and many ecosystems are degraded. 1 The UK has a number of international and legislative commitments to take urgent and effective action to halt the loss of nature or biodiversity.
45 Since the 25 Year Environment Plan set the ambition towards embedding a broad ‘environmental net gain’ principle in the planning system, government has focussed on embedding the principle of biodiversity net gain. In July 2018, the revised National Planning Policy Framework strengthened planning policy on biodiversity net gain by making it clearer that all development in scope should deliver biodiversity net gains. From December 2018 to February 2019, government consulted on whether biodiversity net gain should be made mandatory and received 470 responses. In March 2019, in response to strong support at consultation, the previous government committed to mandating biodiversity net gain in the Environment Bill. The government committed in its manifesto to increasing biodiversity whilst continuing progress towards a target of 300,000 new homes a year by the mid-2020s.
46 Section 40 of the Natural Environment and Rural Communities (NERC) Act 2006 requires all public authorities carrying out functions in England (together with HMRC in Wales also) to have regard to conserving biodiversity when delivering their functions. The existing wording does not adequately reflect the ambition or language of the 25 Year Environment Plan. Shifting the focus of the duty to an active requirement to seek the further conservation and enhancement of nature should better align public authorities’ action on biodiversity with government’s ambition.
47 Spatial plans enable the public, private and charity sectors to direct investment in nature to where it can best benefit the natural environment, and have an important role to play in delivering the government’s commitment to nature recovery. Although such plans do exist in some areas of England, they are often produced by a variety of bodies working at different spatial scales. Local Nature Recovery Strategies (LNRSs) will put spatial planning for nature on a statutory footing, and will support local action by consistently mapping important existing habitats and opportunities to create or restore habitat. For example, the biodiversity net gain consultation identified a need for local plans for nature to target biodiversity increases. Developed through a collaborative approach, LNRSs will also support the delivery of a Nature Recovery Network by acting as a key tool to help local partners better direct investment and action that improves, creates and conserves wildlife-rich habitat.
48 This Bill also includes measures covering forestry and street trees, including amendments to the Forestry Act 1967 to tackle illegal felling, and measures requiring local highway authorities to consult the public before felling any street trees. Current regulations on tree felling include felling licences in the Forestry Act 1967, provisions in the Highways Act 1980, Tree Preservation Orders (TPOs) under the Town and Country Planning Act 1990, and the Equalities Act 2010. On 30 December 2018, the previous government announced a public consultation on protecting and enhancing England’s trees and woodlands which received 4671 responses.
Part 7: Conservation Covenants
49 This Part addresses the absence of a simple legal tool that landowners can use to secure conservation benefits when land is sold or passed on. Conservation covenants are private, voluntary agreements between a landowner and responsible body, such as a conservation charity or public body. They provide for the conservation of the natural environment and heritage assets for the public good. They can bind subsequent owners of the land, so have the potential to deliver long-lasting conservation benefits.
50 In the 25 Year Environment Plan, government set out its ambition of recovering nature. Individual landowners can play an important role in conservation efforts, but under the current law it is difficult to ensure that legal obligations for conservation survive once the land has been sold or passed on. As a result, conservation opportunities are missed or fail to secure long-term, sustainable outcomes. Complex, legal workarounds have sometimes been used but these can be costly and do not always appeal to landowners. Conservation covenants are used in other countries including New Zealand, the USA, Canada and Scotland.
51 The Law Commission examined the need for conservation covenants and concluded that legislation should be introduced, preparing a draft Bill in 2014. The previous government consulted on the Law Commission proposals in February and March 2019. There was broad support for conservation covenants from the 112 responses across a range of stakeholders. The previous government committed to include provisions for conservation covenants in the Environment Bill in its consultation response published on 23 July 2019. The key change to the Law Commission Bill is to allow for-profit bodies to apply to become responsible bodies.
Part 8: Miscellaneous and General Provisions
52 The use of chemicals in the EU is regulated by Regulation (EC) No 1907/2006 concerning the Registration, Evaluation, Authorisation and Restriction of Chemicals (REACH), establishing a European Chemicals Agency (the "REACH Regulation"). The REACH Regulation will form part of retained EU law by virtue of the European Union (Withdrawal) Act 2018 ("the Withdrawal Act"). The REACH Enforcement Regulations 2008 provide for the contravention of various provisions of the REACH Regulation to be a criminal offence, and set out which domestic bodies enforce those offences. Part 8 and Schedule 19 give the Secretary of State the power to amend the REACH Regulation and the REACH Enforcement Regulations 2008 as they apply in the UK after exit day, in order to keep them up to date and respond to emerging needs or ambitions for the effective management of chemicals.
1 JNCC. 2019. Sixth National Report to the United Nations Convention on Biological Diversity: United Kingdom of Great Britain and Northern Ireland. JNCC, Peterborough. Available at http://archive.jncc.gov.uk/pdf/UK_CBD_6NR_v2.pdf.