Scrutiny of the Draft Environment (Principles and Governance) Bill Contents

Conclusions and recommendations

Environmental Principles

1.We remain convinced that the Bill should include an objective to achieve a high level of environmental protection to guide the application of the principles. We recommend that a high level of environmental protection is put on the face of the Bill. This should be inserted at the start of clause 2, as an overarching guiding objective rather than a principle, in the same way as Article 191(2) of the Treaty of the Functioning of the European Union, for example: “Environmental policy shall pursue a high level of protection and it should be based on the principles”. (Paragraph 11)

2.The Bill has confused the three Aarhus Convention rights as environmental principles under clause 2. These rights should be kept separate from the principles. (Paragraph 14)

3.We recommend that the Bill does not include the three Aarhus convention rights explicitly in the list under clause 2 as this would reduce their current effect by putting them on a qualified basis. The Bill should better secure and give further effect to the Aarhus Convention, for example, by ensuring access to justice in relation to environmental matters by providing an adequate standard of review through its enforcement and complaints mechanisms, in cases within the scope of the Aarhus Convention. (Paragraph 15)

4.We have heard a great deal of concern over the way the environmental principles and their application have been set out in the Bill. We remain convinced that the requirement to ‘have regard to’ the policy statement on principles is so vague that every decision could result in litigation. The Bill downgrades the principles’ legal effect and does not connect to the rest of the Bill or other pieces of environmental legislation. This aspect of the Bill is not fit for purpose. (Paragraph 23)

5.We recommend the environmental principles are put on an unqualified legal basis in relation to environmental policy. All public bodies should have a duty to apply the principles as is currently the case under EU law. We welcome the Secretary of State’s consideration of the wording in clause 4(1) and recommend it should be amended so that, “all public authorities will act in accordance with the policy statement and have due regard to the environmental principles in the exercise of their functions”. (Paragraph 24)

6.One of the Office for Environmental Protection’s principal duties should include the application and promotion of the principles. This should be included in clause 12(3) on the exercise of its functions. (Paragraph 25)

7.The principles should be broadly applied to have their intended effect. The exclusions set out in the Bill are so broad that the principles will not continue to have a meaningful influence on the development and application of environmental policy and law. It is likely that the exclusions set out in clause 4(2) will be immune from judicial review. (Paragraph 32)

8.Any exclusions to the application of the principles ought to be very narrowly defined. The Bill should specify that the Ministry of Defence as a landowner is not excluded, nor should general taxation or spending be omitted since many environmental measures depend on changes to the tax system. We welcome the commitment that the Secretary of State will look again at the exclusions to the principles and recommend that:

9.We are disappointed that we have not had sight of the policy statement on principles and this limits our ability to comment. Clause 3 should be amended to require Parliament to approve the policy statement and any subsequent revisions to it. The provisions of the Planning Act 2008 which require public consultation and scrutiny of policy statements by Select Committees should also apply. (Paragraph 36)

Environmental Improvement Plans

10.We welcome the Government putting the requirement to prepare annual reports on the implementation of Environmental Improvement Plans in the Bill. Yet we are concerned that the approach to monitoring and data collection could hinder this process. While Defra’s draft indicator framework is promising, we are concerned that a proportion of the indicators will not be ready until 2020 at the earliest and that the Natural Capital Committee considers that there are errors in the Government’s approach. We recommend Defra urgently completes its indicator framework and takes on board the advice from the Natural Capital Committee to establish a robust baseline from which to measure progress. (Paragraph 50)

11.We heard that environmental policy rests upon having accurate, robust and comparable data. Yet much of the UK’s environmental data has been driven by European requirements and this must not be lost upon leaving the EU. We recommend that clause 7 is amended to commit the Government to ensure that UK environmental data and information is collected to at least the same standards as the European Environment Agency for the European Union. The Bill should also require that the data collected under clause 7 is published and that under clause 14, there be a requirement for the Office for Environmental Protection to monitor and publish a commentary on this data. (Paragraph 51)

12.The National Audit Office has concluded that Defra has not yet done enough to engage other parts of Government with its approach on environmental targets, nor set clear accountabilities for performance. Given the weaknesses we have heard about the application of the principles and the broad exclusions to them that exist in the Bill, we do not think this will be enough to drive improved environmental performance across Government. We consider that legally binding targets and objectives are needed. (Paragraph 52)

13.We recommend that in addition to the objective of a high level of protection being included on the face of the Bill, the Bill should also include a framework for targets and interim milestones to be achieved by Government Departments. These should be set following stakeholder consultation and parliamentary scrutiny. Once these targets have been established, the Cabinet Office must issue guidance directing Departments to explain how their work programmes will achieve the delivery of these targets in their Single Departmental Plans. This will then assist the Office for Environmental Protection in holding Government Departments to account. (Paragraph 53)

14.Since the European Commission has a role in advising on target setting, one of the Office for Environmental Protection or the Joint Nature Conservation Committee’s principal duties should also be to advise on the establishment of targets. This should be included in clause 12(3) on the exercise of its functions. (Paragraph 54)

15.We welcome that the Government intends to put Environmental Improvement Plans on a statutory cycle of monitoring, reviewing and reporting in line with our previous recommendations. Yet we heard how the reporting timetable between the Government and the Office for Environmental Protection on Environmental Improvement Plans was “absurdly elastic” and could allow for a number of years between a poor decision taking place and a Minister being accountable for it. (Paragraph 58)

16.We recommend that the timeframe for reporting is tightened with specific dates for the reporting duties put into the legislation. Clause 8 should be redrafted to reflect the reporting timetable in the Climate Change Act 2008, which is a helpful analogue. (Paragraph 59)

17.Reporting on progress on an Environmental Improvement Plan by the Office for Environmental Protection does not make an assessment on the effectiveness of the plan. Clause 14(3) should include an assessment of how well the Government has met its statutory targets and the effectiveness of its Environmental Improvement Plan. It should also include a requirement for the Government’s response to the progress report to explain how it intends to take any action recommended by the Office for Environmental Protection, or why it does not intend to take such action. (Paragraph 60)

The Office for Environmental Protection

18.The Government has promised the Office for Environmental Protection will be independent but has not provided enough evidence that its proposals do so. Nor has it provided enough reasoning for why it has not accepted our previous recommendations on governance which the majority of evidence supports and for which there are precedents. The Secretary of State suggested that the OEP could go further than the European Commission, yet the proposals in the Bill fall woefully short of this. (Paragraph 82)

19.We stand by our previous recommendation that the Office for Environmental Protection should report to Parliament and that a statutory body of parliamentarians, modelled on the Public Accounts Commission, should set its budget, scrutinise its performance and oversee its governance. The Bill should be amended to require that this body of parliamentarians be established. Constitutional experts told us there was no impropriety in the OEP being established in this way. (Paragraph 83)

20.The appointments process for Members of the Office for Environmental Protection does not provide for enough independence from Government as the balance of power lies with the Secretary of State. Parliament must have a greater role in the appointments process with a Parliamentary Committee having a veto over the appointment of the Office for Environmental Protection’s Members and Chief Executive. (Paragraph 84)

21.We recommend that Schedule 1 should be amended to reflect Paragraph 1 of Schedule 1 to the Budget Responsibility and National Audit Act 2011 for the appointment of the Office for Environmental Protection’s Members and Chief Executive and paragraph 6(3) of Schedule 1 of the same Act to set out a process to protect Office for Environmental Protection members against dismissal by the Secretary of State. This appointments process would utilise the statutory body of parliamentarians as the appointing Committee. (Paragraph 85)

22.We recommend that the Government makes a political commitment to providing the Office for Environmental Protection with a five year budget in line with spending reviews. Precedents for this exist for other non-Departmental public bodies. (Paragraph 86)

23.We recommend that the Office for Environmental Protection should have its own estimate, to be negotiated directly with HM Treasury, and to be voted on by Parliament in the yearly Supply and Appropriation (Main Estimates) Bill. Paragraph 15 of Schedule 1 to the Railways and Transport Safety Act 2003 provides a useful precedent. (Paragraph 87)

24.We recommend that the funding architecture for the Office for Environmental Protection mirrors that of the National Audit Office. For example, there would be a role for the Environmental Audit Committee to conduct an annual review of the Office for Environmental Protection’s work and progress against its purpose and objectives, including whether it is receiving adequate funding to fulfil its duties. The statutory body of parliamentarians would then scrutinise and review the funding estimate produced by the Office for Environmental Protection. The National Audit Office would audit and certify the Office for Environmental Protection’s annual accounts. (Paragraph 88)

25.Clause 12(1)(a) and 12(3)(a) should have “independent” added to the list of requirements which the Office for Environmental Protection must follow and “have regard to the need to act” should be changed to “must act”. A duty to report interference should be added to Paragraph 10 of the schedule. (Paragraph 89)

26.The definition of environmental law has significant implications for the scope of the Office for Environmental Protection’s enforcement powers. As drafted, clauses 30 and 31 and their explanatory notes are confusing, and we welcome the Ministers’ acknowledgement of this. (Paragraph 101)

27.We recommend that the Government provides greater clarity on the definition of environmental law and natural environment, particularly in the explanatory notes to the Bill. The notes should set out that environmental assessments and strategic environmental assessments are within the definition of environmental law. (Paragraph 102)

28.Clause 31(1)(a) on environmental law should be changed from ‘is mainly concerned with’ to ‘relating to’. The Government should consider using existing definitions, such as those in the Natural Environment and Rural Communities Act 2006, the Environmental Protection Act 1990 and the Aarhus Convention. (Paragraph 103)

29.We recommend that international law is included within the scope of the Office for Environmental Protection’s scrutiny and advice functions. Clause 31 should be amended by providing that, in relation to its functions under clauses 15 and 16, environmental law shall also include (a) any area of law with significant environmental implications and (b) international environmental law. (Paragraph 104)

30.Climate change mitigation, except for the regulation of fluorinated gases, has been specifically excluded from the Bill. This will create a gap in enforcement which is currently undertaken by the European Commission, as the Committee on Climate Change has no enforcement powers. To date the governance framework established under the Climate Change Act has worked well and there has been no need for Parliament to intervene to achieve carbon budgets. Yet, according to the Committee on Climate Change, it is the forthcoming fourth and fifth carbon budgets that are not on track to be achieved. We therefore consider that there is a need for the enforcement of climate change law. (Paragraph 105)

31.We recommend that the Office for Environmental Protection should have climate change mitigation in its remit and therefore clause 31(3)(a) should be deleted. This would allow the OEP to bring cases against the Government in relation to the implementation of the Energy Efficiency Directive, the Renewable Energy Directive, the Waste Framework Directive and the meeting of carbon budgets. We recognise that this will not resolve the issue that carbon budgets are in the future and therefore effective enforcement could be limited until after carbon budgets are missed. Yet we do not think this is a reason to preclude enforcement on climate change mitigation from the OEP and we recognise that there will still be a significant role for the Committee on Climate Change’s advice, and for Parliament to decide whether the Government’s plans are adequate to meet carbon budgets. (Paragraph 106)

Role and Powers of the Office for Environmental Protection

32.We recommend that clause 15(2) is changed to read, “The OEP must report on any matter concerned with the implementation of environmental law”. (Paragraph 112)

33.Further memoranda of understanding should be considered to avoid duplication of the scrutiny and advice functions of the Office for Environmental Protection and existing bodies such as the Environment Agency and Natural England. These need not be set out on the face of the Bill. (Paragraph 113)

34.We recommend that clause 16 should require the Office for Environmental Protection to be consulted on any changes to environmental law, rather than having a duty to give advice. The Office for Environmental Protection’s response on changes to environmental law should be published, with the Secretary of State required to lay before Parliament a response to this advice. (Paragraph 115)

35.As drafted, the definition of failure to comply with environmental law narrows the scope of the Office for Environmental Protection’s enforcement powers to look solely at process. It does not achieve equivalence with the European Commission’s powers, nor does it reflect the integration principle. (Paragraph 120)

36.The enforcement mechanism must go beyond that of traditional judicial review and the Wednesbury test to a more proportionate approach involving a structured examination of effectiveness. (Paragraph 121)

37.We recommend that clause 17 sets out that the Office for Environmental Protection’s enforcement functions relate to failure to achieve environmental targets and standards (the framework for which will be established in part two of the Bill), rather than questions of administrative compliance. Government as a whole should be accountable for the achievement of environmental standards and targets, rather than individual public authorities, as is the case with the European Commission’s infringement procedure. This would require different areas of Government (central Government, local Government and public bodies) to work together cooperatively to address an environment problem. We welcome the Ministers’ acknowledgement that the Office for Environmental Protection will be able to decide which authority is responsible and take enforcement action. (Paragraph 122)

38.Serious damage may sometimes take years to become apparent. We cannot understand the justification for a time limit on complaints. This is not used by the European Commission and should be removed. Clause 18(6) which specifies time limits to complaints and 18(7) which says that out of time complaints can be considered in exceptional circumstances, should be removed. (Paragraph 130)

39.Clause 19(1) should provide a power for the Office for Environmental Protection to be able to instigate its own investigations and not just those that it receives a complaint on. It should also be able to investigate alleged breaches rather than those that are, in its view, ‘serious’. Clause 19(1) should have the following subclause added: “(c) and is consistent with its enforcement policy”. (Paragraph 131)

40.Clause 12(3) requires that the Office for Environmental Protection must set out how it will avoid any overlap in functions with the Committee on Climate Change and a similar duty should be included to set out how it will avoid any overlap with the Local Government and Social Care Ombudsman and Parliamentary and Health Service Ombudsman complaints-handing functions. The Office for Environmental Protection should also be required to consult on, publish and review its criteria for investigation. (Paragraph 132)

41.As we have already set out, the Office for Environmental Protection’s enforcement procedure does not achieve equivalence with the European Commission’s powers as it is limited to administrative compliance rather than achieving environmental standards and outcomes. (Paragraph 147)

42.We recommend that, following the changes suggested to clause 17 (that the enforcement mechanism must go beyond that of traditional judicial review), the references in clause 25 to judicial review should be deleted and 25(1) should refer to failing to achieve environmental targets and standards set out in section 17. (Paragraph 148)

43.A one-size-fits-all approach to enforcement is not appropriate since the failure to comply with environmental law comes in many different forms. The procedure set out in the Bill is also slow and could preclude other, swifter forms of enforcement and remediation. (Paragraph 149)

44.We recommend that:

45.Overall, the enforcement procedure lacks imagination and the Government must consider alternative mechanisms. We have heard compelling evidence that there should be an expanded role for the First-tier Tribunal. This would help to resolve more cases before the need to apply for judicial review. (Paragraph 151)

46.We recommend the Government looks further into a bespoke enforcement procedure and an expansion of the role and remit of the General Regulatory Chamber in the First-tier Tribunal. For example, where the Office for Environmental Protection is able to issue notices (at first advisory, then latterly binding) with a range of compliance recommendations, to which the public authority must then comply, or set out proportionate reasons why not. The Office for Environmental Protection would then be able to challenge a decision not to comply with the notice at the tribunal. The tribunal would undertake a substantive review of the authority’s decision not to comply with the notice. Any failure to comply with a decision should amount to contempt and be referable to the Upper Tribunal. Section 202 of the Data Protection Act 2018 provides a useful guide as to how this could be achieved in the legislation. (Paragraph 152)

47.We recommend:

Collaboration with Devolved Administrations

48.We are disappointed that limited effort has been made to co-design a body and governance framework to cover all four nations of the UK, given this would provide greater independence, a level playing field and more coordinated action. We consider that although it appears coordination has improved since the publication of the Bill, the lack of action in the lead-up to, and drafting of the Bill, had already ruled out possible areas of collaboration which could extend into the future. (Paragraph 170)

49.The Government should set out in response to this report how it intends for the Office for Environmental Protection to work collaboratively and without overlap with its potential equivalent bodies in Wales and Scotland. The response should clearly set out which provisions are within the scope of the Office for Environmental Protection in respect of reserved matters. (Paragraph 171)

50.The inclusion of Northern Ireland within the scope of the Bill is welcome but will require careful consideration. The Government must ensure that there is appropriate representation from Northern Ireland on both the Board and within the staff to ensure it can deal with country specific issues adequately. We are reassured that the Office for Environmental Protection need not be located within London, but thought should be given to whether it will operate effectively in Northern Ireland and should bear in mind the environmental impacts of travel. (Paragraph 172)

51.We reiterate our previous conclusion that common frameworks must be established as soon as possible to ensure that the environment is not simply reliant on the goodwill of this or any future Government. The Government must ensure that common frameworks are in place by exit day or should explain why they are not time critical. We recommend the Government produces an update to its 2018 analysis on common frameworks in response to this report. (Paragraph 175)

Wider concerns on the draft Bill

52.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. (Paragraph 185)

53.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. (Paragraph 189)

54.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. (Paragraph 190)

55.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. (Paragraph 194)

Published: 25 April 2019