The draft Environment (Governance and Principles) Bill aims to create a new framework for environmental governance, as part of a wider Environment Bill in 2019. It is a crucial piece of legislation to maintain protection for the environment after leaving the European Union, yet the pre-legislative scrutiny process has identified some serious concerns with the proposals as they currently stand, which must be resolved before the Bill is introduced.
While we welcome that we have had the opportunity to scrutinise the draft Bill before its introduction, we have only had sight of the sections on governance and principles. Therefore, our conclusions and recommendations are qualified as we are unable to assess the full implications of the Bill for the environment.
The legal definition of the environment in the Bill should encompass at the very least the definitions such as those in the Natural Environment and Rural Communities Act 2006, the Environmental Protection Act 1990 and the Aarhus Convention. The scope of the Bill is largely limited to England, which is disappointing given that UK-wide cooperation would enable more efficient and coordinated action. It is welcome that the oversight body will have jurisdiction in Northern Ireland. The Government must now set out how it will practically achieve this and how oversight will be coordinated with equivalent arrangements in Scotland and Wales.
The Bill is a missed opportunity for taking a holistic approach to environment and climate change, placing them at the heart of Government policy. From what we have seen, the Bill is lacks coherence with many Government Departments’ responsibilities exempted. Taxation and spending have been explicitly excluded from the application of the principles - as has defence, one of the largest landowners in Britain. There is no enforcement mechanism to replace the role of the European Commission to enforce action on climate change mitigation, which weakens the Climate Change Act and should be remedied when the final Bill is published. It is clear where the competing interests of different Departments have influenced the drafting of the Bill, which weakens its effectiveness. Defra must take ownership and ensure that the rest of Government is on board with its ambitions prior to the Bill’s introduction.
We consider the following areas of the Bill are deficient and require attention:
The environmental principles which guide and inform European Union legislation and policy have been severely downgraded by the proposals in the Bill. Their application is limited to Minister’s action rather than all public bodies; they are subject to a number of exclusions; and to the veto of the Secretary of State. They do not link to the rest of the Bill or other legislation. Due to the weak drafting of the duty it could create a great deal of litigation. We recommend that an overarching objective to achieve a high level of environmental protection is included in the Bill to guide environmental policy.
We have still not had sight of the policy statement which will guide interpretation of the principles, so it is impossible to assess the true impact of the Bill. We recommend that the Government looks again at the principles and puts them on an unqualified legal basis in relation to environmental policy. The policy statement must be subject to Parliamentary and Select Committee scrutiny.
We welcome the Government’s ambition to establish a world-leading, green governance body—the Office for Environmental Protection (OEP)—to provide advice, scrutiny, reporting and enforce environmental law. The Secretary of State has suggested that this body could go further than the European Commission, yet the proposals in the Bill fall woefully short.
We previously set out how this body should be constituted to ensure that it was independent; to be free to criticise the Government and hold it to account. The Government rejected our previous recommendations from July 2018, which suggested a greater role for Parliament in its governance, funding and appointments processes. The evidence to this inquiry was near-unanimous in supporting a greater role for Parliament and we were informed that, contrary to Government suggestion, there would be no constitutional impropriety in this.
We stand by our previous recommendations and conclude that the OEP, constituted as a Non-Departmental Public Body, will not have the independence required of a watchdog of this nature. Greater scrutiny is needed in the appointments process for the OEP’s board and chief executive and its budget setting process. Greater independence is required for its communications and its ability to conduct investigations and report any interference from Ministers or Government officials. The Government must commit to a longer term financial settlement to avoid the OEP following a similar fate to other Non-Departmental Public Bodies in having funding reduced over time.
Enforcement by the OEP is limited to administrative compliance and not the failure to attain environmental standards and targets. This is at odds with the Government’s claim that the Bill places environmental accountability at the heart of Government and is not equivalent to the procedure of the European Commission.
Under the accountability framework set out in the Bill, local authorities or arm’s-length bodies, who may have limited control over their budgets, could be held to account for failings outside their control. The whole of Government should be accountable for the achievement of environmental standards and targets, rather than individual public authorities, unless the OEP deems that a specific body is at fault. This would ensure collective accountability and cross-Government working to resolve environmental failures.
The enforcement of climate change mitigation has been deliberately excluded from the scope of the OEP, yet this will become increasingly important as carbon budgets become harder to achieve in the coming years. With only 12 years to halt the most devastating impacts of climate change, it is vital that mitigation is put on the same footing as the rest of environmental law.
The procedure to address failure by public bodies set out in the Bill is too slow and inflexible. It relies on judicial review which is not appropriate for environmental problems, where a quicker and more proportionate approach is needed. A bespoke enforcement procedure would help to address these shortcomings. We recommend an expanded role for the first tier tribunal, which could resolve more cases before the need for judicial review and undertake a more considered review of decision-making by expert members.
The Government has promised the wider Bill will introduce “legislative measures to take direct action to address the biggest environmental priorities of our age”. Yet the targets, metrics and milestones that will be important to drive meaningful action to improve the environment have not yet been published. The wider Bill must establish the framework for target setting and require that the OEP has a duty to advise on the establishment of targets as is the case with the European Commission. Targets will need to be established as soon as possible through stakeholder consultation and parliamentary scrutiny and linked coherently to the OEP’s enforcement procedure.
We welcome the reporting cycle for Environmental Improvement Plans, as recommended in our previous report. However, the reporting timetable is lax and could allow a number of years to pass between a poor decision taking place and a Minister being accountable for it. The timetable for reporting should be tightened with specific dates for the reporting duties put into the Bill.
The Government has not established clear accountability for other Departments’ progress and there is little in the Bill to bind other Government Departments into action. The Cabinet Office must issue guidance to ensure Departments commit to achieving delivery of the targets and milestones in their single departmental plans and can then be held to account by the OEP. Only then will environmental accountability be put at the heart of Government.
We welcome the Department and Ministers’ open approach during our inquiry and hope our recommendations are viewed constructively. We look forward to seeing them addressed in the final Bill.
Published: 25 April 2019