7Wider concerns on the draft Bill
176.The Bill has been drafted during the process of negotiations to leave the EU, which we recognise has meant that there are outstanding issues that need to be resolved before the Bill is introduced, for example, how to meet the requirements of the Withdrawal Agreement or emergency planning in the event of not reaching a deal.
Withdrawal Agreement
177.The UK-EU Withdrawal Agreement that was endorsed by EU leaders on 25 November 2018 sets out the draft agreement between the UK Government and the EU for the withdrawal of the UK from the EU.314 As part of the Agreement, should the UK and EU not reach a future trade agreement at the end of the transition period specified in the Withdrawal Agreement, then the Northern Ireland protocol (referred to as ‘the backstop’) will come into force to maintain an open border on the island of Ireland. Under the backstop, the UK will conform to specific EU legislation on customs, taxation, the environment, labour law, state aid and competition.315 This includes a non-regression clause on environment.
Non-regression
178.Non-regression means that environmental protection will not be reduced from common standards applicable within the EU and UK. It is environmentally important and will be a key factor in the UK’s ability to strike a free trade agreement with the EU.316 The text sets out:
… the Union and the United Kingdom shall ensure that the level of environmental protection provided by law, regulations and practices is not reduced below the level provided by the common standards applicable within the Union and the United Kingdom at the end of the transition period …317
179.The Government has confirmed that the Bill’s proposals do not yet meet the non-regression clause and it will consider the provisions of the Withdrawal Agreement ahead of publishing the final Bill.318 Greener UK said the Government’s explanatory notes provide no legal certainty on how the non-regression commitment will be delivered and said jointly agreed common environmental frameworks would need to be in place across the UK.319 Nigel Haigh, formerly of IEEP, warned that the absence of an objective to achieve ‘high standards’ in the Bill “will not evade the eyes of the EU” during future trade negotiations. ClientEarth recommended that the Bill should specifically include a binding non-regression provision to prevent any lowering in environmental standards.320
180.The Secretary of State for Business, Energy and Industrial Strategy, Rt Hon Greg Clark MP, announced that the Government will legislate to ensure that where future Bills could affect environmental protections, Ministers will have to make a “statement of compatibility to Parliament and provide explanatory information”.321 This proposal does not suggest what would happen if Parliament voted against strengthening standards to meet non-regression. Amy Mount from Greener UK said the proposal was unclear:
The Government would have a statutory requirement to report on changes at the EU level, but there is nothing there on independent scrutiny of the government’s response to those changes, nor clarity on how Parliament would consider any report. It is very vague.322
Enforcement
181.The Withdrawal Agreement commits the UK to ensure that “sanctions are effective, proportionate and dissuasive and have a real and deterrent effect”.323 The UK must implement “a transparent system for the effective domestic monitoring, reporting, oversight and enforcement” and the oversight body (the Office for Environmental Protection) must be “independent and adequately resourced”.324 The Brexit and Environment network said the Bill is not sufficient to meet the requirements of the Withdrawal Agreement as it “arguably opens the door to a weaker environmental protection regime after Brexit”.325 Andrew Bryce, former Chairman of UKELA agreed:
The process for the OEP to highlight a breach of law with non-binding notices and then obtain a declaration upon a Judicial Review with no provision for enforceable remedial solutions does not seem to me to meet this requirement.326
182.The Institute for Government (IfG) said that it “notable” that the Government’s explanatory notes do not mention that the Withdrawal Agreement makes a commitment to funding of the OEP.327 There are also requirements to put four of the principles into legislation.328
Regulatory alignment
183.The future relationship treaty or treaties, when they are negotiated, may impose different environmental obligations on the UK.329 The IfG has said that should the UK seek significant integration into the single market, then this may involve “dynamic alignment” with EU environmental rules, rather than non-regression. This could provide a further remit for the OEP, to provide oversight on whether the UK is transposing environmental law into UK law adequately and on time. The IfG has suggested that this may be better suited to a supranational rather than domestic body.330
184.Dr Coffey acknowledged that the Withdrawal Agreement would require a body similar to the OEP in Scotland, Wales and Northern Ireland.331 We also asked whether there would be cross-border issues between Northern Ireland and Ireland. She said she did not think this would be a problem:
I believe that there is good co-operation that already exists. I think if you go to the Good Friday Agreement, while that is a key part of the element, it is about the collaboration and co-operation. It does not require necessarily that things be the same on how outcomes are achieved and what Directives are set.332
185.The Bill will need to be significantly upgraded to meet the requirements of non-regression under the Northern Ireland protocol to the Withdrawal Agreement. The Government will have to show that the Office for Environmental Protection is properly resourced, independent and able to issue effective sanctions. It will also require cooperation with the other devolved administrations. The Bill should include a binding non-regression provision. We conclude that without implementing the recommendations already presented in this report, on independence, accountability to Parliament, funding, the principles and enforcement, the Government will fail to meet its obligations under the Withdrawal Agreement.
No Deal
186.In the event that the UK leaves the EU without a deal, there will be not be a transition period and therefore there will be a gap between the jurisdiction of the European Court of Justice ending and the Office for Environmental Protection being established.333 We previously warned that this would be “an unthinkable prospect and the Government must do everything to avoid it”.334 The IfG has suggested that the OEP may not be in place until 2021 at the earliest.335 The Government has acknowledged that interim arrangements will be needed and has said that there will be a mechanism for the OEP to receive a report of any perceived or claimed breaches of environmental law made during this period.336 It said that the OEP will be able to consider any early action it may need to take upon its establishment.337
187.Greener UK said greater clarity was needed on the nature of the interim arrangements and how breaches of environmental law will be identified and managed.338 The House of Lords EU Energy and Environment Sub-Committee recommended that interim measures could involve “temporarily increasing the powers and remit of existing bodies” and providing them with the additional resources and governance structures to undertake these functions effectively and independently.339 The Mayor of London said that the Government must assign the same powers and functions to such an interim body.340
188.We asked Defra Ministers what measures would be in place in the event of no deal being reached with the EU. Dr Coffey told us that a staff of 16 full time civil servants had been established as an interim secretariat with a Chair (or Commissioner) and that they will be located separately from Defra with separate systems.341 She added that the new Chair will be appointed to the post by our Committee, the EFRA Committee or by both Committees.342 Michael Gove said that should the interim secretariat be needed then he “would lay out exactly what we were doing at that point”.343 Dr Coffey acknowledged that the OEP would not be able to fulfil all the roles of the Commission and the CJEU:
Chair: It is still a long way from the 60 to 120 [staff] that the Secretary of State was talking about for fully up and running though, isn’t it?
Dr Coffey: I recognise that, but it is not necessarily fulfilling all the roles that the OEP would do. It is an Interim Secretariat to try to facilitate some of the initial procedures that will be there. […]
Michael Gove: Our domestic courts would be fulfilling some of those roles as well.344
189.We welcome the Government’s recognition that interim arrangements are necessary in the event of no deal being reached with the European Union and that the Committee will have a role in the appointment of its Chair. Yet a body with a staff of 16, rather than the 60–120 the Secretary of State acknowledged would be necessary, will leave a significant governance gap.
190.The Government must set out what functions the interim OEP will be undertaking and what retrospective powers it will have as soon as it is established to allow for active scrutiny. We would also welcome clarity on interim arrangements for Northern Ireland.
Part two of the Bill
191.The Government has stated that the final Environment Bill will also include legislative measures “to address the biggest environmental priorities of our age”.345 The policy paper sets out that this will include measures on air quality, nature recovery, waste and resource efficiency and water management.346 Further consultations are planned for wider aspects of the Bill including those on extended producer responsibility and biodiversity net gain.347 Officials from the Department for Transport told us that the Bill will also include the power to compel manufacturers to recall vehicles on environmental grounds.348 We welcome this.
192.Witnesses told us that the rest of the Bill will also need to set out how spatial aspects, such as the Nature Recovery Network from the 25 Year Plan, will be established.349 Ruth Chambers from Greener UK said it was difficult to judge the effectiveness of the future governance framework under the Bill until all of it is published:
We cannot stress enough the urgency of seeing the complete package, the full Bill, the overarching objective that is going to deliver the Government’s aim to leave the environment in a better state than it inherited it. Whatever targets and metrics are going to be enshrined in law, it is a complete system of governance and the OEP is going to be the beating heart of that system. Until we can see it all together and decide how it all works together, it is very hard to answer questions.350
193.When asked when the full Bill will be published, Michael Gove stated that he hoped it would be in the Queen’s speech.351
194.It has been difficult to assess how oversight and enforcement will work without having sight of the framework for setting targets and milestones, nor the process for how these will be achieved. Our recommendations in this report are qualified by the fact that we have not seen the rest of the Bill. We need clarity from the Government on what other environmental gaps or weaknesses in UK environmental law they plan to address with the Environment Bill. We are also concerned that the Government has not signalled its intention for us to be able to conduct pre-legislative scrutiny on the entire Environment Bill, given the importance of topics such as biodiversity net gain, extended producer responsibility, nature recovery networks and air quality. Nevertheless, we will be closely watching when the Bill is published.
314 Draft Withdrawal Agreement; A Political Declaration setting out the framework for the future economic partnership between the UK and the EU was also published.
315 Draft Withdrawal Agreement, Article 6
318 Environment Bill: policy paper, 19 December 2018
324 Article 3, Paragraph 2 of the Protocol to the Withdrawal Agreement on Ireland and Northern Ireland
328 Part 2, article 2, paragraph 2 of the Protocol to the Withdrawal Agreement on Ireland and Northern Ireland
333 What if there’s no Brexit deal? House of Commons Library, No 08397
334 House of Commons Environmental Audit Committee, The Government’s 25 Year Plan for the Environment, 24 July 2018, HC803
335 Institute for Government. 2019. Brexit: two months to go
336 Environment Bill: policy paper, 19 December 2018
337 Environment Bill: policy paper, 19 December 2018
338 Greener UK (DEB0027); see also Chartered Institution of Water and Environmental Management (DEB0010)
345 Draft Environment (Principles and Governance) Bill 2018, press notice, 19 December 2018
346 Environment Bill: policy paper, 19 December 2018
347 The Government is proposing to make biodiversity net gain necessary for developments when granting planning permission. Biodiversity net gain requires a development to leave the natural environment in a measurably better state than it was before.
348 Oral evidence taken before the Environmental Audit Committee on 3 April 2019, Sustainability in the Department for Transport, HC2109, Q86
Published: 25 April 2019