UK Progress on Reducing Nitrate Pollution Contents

6Monitoring, Compliance and Enforcement after the UK Leaves the EU

115.We considered what impact leaving the EU will have on existing legislation in terms of transposition and continuity and how, with the absence of EU institutions, compliance will be ensured. In addition, we considered how the Government’s 25 Year Environment Plan and its Agriculture Bill 2017–19, matched the targets and objectives of existing EU regulation. Finally, we looked at the implications that leaving the EU will have for Northern Ireland and the Republic of Ireland, who share several river basins.

EU Regulatory Transposition Issues

116.The EU (Withdrawal) Act 2018 will incorporate the existing body of EU Environmental law into UK Law.303 The Minister told us that the Government was “committed to the water quality objectives that we have, and those will become retained EU law once the EU Withdrawal Bill has completed its passage”.304 The Environment Agency also said that there was nothing in the Government’s plans that “suggests that we will row back on our water quality objectives”.305 However, we warned in our previous report - The Future of the Natural Environment after the EU Referendum, about the dangers of ‘zombie legislation’, that is the prospect of EU Law not being updated, monitored or enforced by an appropriate governance body.306 We are therefore concerned as to how the Government will replicate the oversight provided by the European Environment Agency, the European Commission and the European Court of Justice in relation to nitrates, water and air quality and how legislation will be updated.307 We have also previously noted that the European Commission provides a mechanism by which individuals and organisations can raise complaints, free of charge, for breaches of relevant legislation.308 The latter has been the case with a number of breaches of water quality legislation, notably the Urban Waste Water Directive.309

Holding the Government to Account for Environmental Outcomes

117.Section 16 of the EU (Withdrawal) Act 2018 commits the Government to produce a draft environment bill within 6 months of the EU (Withdrawal) Act 2018 being passed (the deadline is therefore 26 December 2018310). This must include a set of environmental principles, and proposals for a public authority to take on environmental oversight functions, including proportionate enforcement action for environmental breaches.311 The Secretary of State told us in April 2018 that the enforcement powers of such a body “should, wherever possible, either emulate or build on the enforcement powers that the Commission itself currently has, so the capacity to take the Government or any other relevant body to court”.312 Previously, in November 2017 he had told the Committee: “Outside the European Union the question is what replaces the Commission, how do we have the ECJ as a role replicated … The most important thing though is, having recognised there is a gap”.313 In May 2018, the Government published a consultation for a new Environmental Principles and Governance Bill, to be published in Autumn 2018, which included proposals for a “world-leading body to hold government to account for environmental outcomes”.314 The body would seek to: provide independent scrutiny and advice on existing and future government environmental law and policy; respond to complaints about government’s delivery of environmental law; and hold government to account publicly over its delivery of environmental law and exercising enforcement powers where necessary.315

118.However, the proposals were criticised as being too weak because the new body would ensure that the Government had regard to environmental principles rather than statutory targets, while critics fear that there was conflict within the Cabinet on what powers the new body should have.316

119.We therefore proposed in our Report - The Government’s 25 Year Plan for the Environment, published in July 2018, creating in UK law an independent oversight body—The Environmental Enforcement and Audit Office (EEAO), that reports to Parliament. We stated that it should have strong powers replicating those of the European Commission and European Environment Agency to ensure that the Government delivered on its stated objective of restoring as well as maintaining the UK’s nature and biodiversity. We also proposed that a statutory body of parliamentarians, modelled on the Public Accounts Commission, should set the EEAO’s budget, scrutinise its performance and oversee its governance. Crucially, we stated that the EEAO, whilst monitoring public bodies and reporting on their performance against key environmental targets, including those for water and air quality, should have effective and proactive enforcement powers, with the power to fine government departments and agencies that fail to comply, collecting fines and overseeing remedial compliance actions. The EEAO should also allow complaints to be brought by members of the public.317

120.We are concerned that, despite the assurances of the Minister, the compliance regime for EU water quality and nitrate directives can not be fully transposed into UK law and run the risk, as we have warned before, of ending up as ‘zombie’ legislation. These laws will no longer be updated to take account of changes across the EU and will be divorced from the EU institutions which ensure administrative support, compliance and enforcement. While we welcome the Secretary of State’s acknowledgement of the need for an environmental watchdog to fill the Commission-shaped hole and to replace the European Court of Justice, we are worried that his proposals do not provide an independent body with sufficient powers to ensure that statutory water quality and pollution reduction targets are met. We are also concerned that it will be more difficult to bring cases against the Government for breaches of nitrate pollution and water quality legislation. In addition, we are concerned that if the current system of monitoring, compliance and enforcement is currently under-resourced, as several witnesses told us, regulators such as the Environment Agency will struggle to take on responsibilities previously undertaken by EU institutions.

121.The Government should ensure that its draft environmental bill includes a watchdog as we have recommended, with sufficient powers to enforce compliance with statutory water quality targets, fine Government departments and public authorities for non-compliance, and allow complaints for breaches to be raised and dealt with by the courts. The Government also needs to provide assurance that the post-EU regulatory system will be sufficiently resourced.

The 25 Year Environment Plan versus the Water Framework Directive

122.In January 2018, the Government published its long delayed 25 Year Environment Plan.318 We have dealt with the plan in detail in our report ‘The Government’s 25 Year Plan for the Environment’.319 The Plan included proposals on air pollution and water quality.320 On water quality, the Plan stated that the Government would: ensure that by 2021 the proportion of water bodies with enough water to support environmental standards increased from 82% to 90% for surface water bodies and from 72% to 77% for groundwater bodies; reaching or exceed objectives for rivers, lakes, coastal and ground waters that are specially protected, whether for biodiversity or drinking water; minimise by 2030 the harmful bacteria in designated bathing waters and continue to improve the cleanliness of water bodies.321 The Plan also stated that the Government would “improv[e] at least three quarters of our waters to be close to their natural state as soon as is practicable”.322 The target reflected the targets set in the current River Basin Management Plans analysis of where environmental benefits would outweigh costs and is based on existing plans to reform the abstraction system and the Government meeting or exceeding existing EU legal requirements for water quality targets, especially those for bathing waters.323 However, the Water Framework Directive (WFD) aims for ‘good status’ for all ground and surface waters in the EU by 2027. “As soon as is practicable” can be seen as a weakening of this target.

123.We questioned the Minister on the gap between what the Plan stated and the target set out in the WFD. He told us that the Government had no intention of watering down the WFD outcomes and that the Plan was “a much more general broader framework” that did not go “into listing each and every commitment” and which was “more about the approach and principles”.324 When asked about targets he said that the Government had “deliberately not tried to have targets for everything”,325 and that it was important to “have the trend moving in the right direction”.326 The Secretary of State also told us in evidence to our Inquiry on the 25 Year Plan that he did “not want to have any dilution” of the Water Framework Directive,327 and in subsequent correspondence that targets for the Plan were intended as a “direct translation of commitments of the WFD”.328 The Environment Agency told us that the UK along with other EU Member states were finding the 2027 target in the Water Framework Directive a “challenge” because it would mean ensuring all water bodies were returned to a near-natural state.329 However, the Agency maintained that there was nothing to suggest that it was rowing back on water quality objectives. It told us that it is currently looking at robust metrics to support delivery of the 25 Year Plan, which will be ready by the end of 2018, drawing on wide stakeholder engagement. In terms of nitrates and water pollution it said that they will “be based on metrics already in use, for example WFD monitoring, as well as those developed for the 25 Year Environment Plan”.330

124.In June 2018, the Secretary of State wrote to the Chair of the Environmental Audit Committee stating that it had become clear that it would “be very challenging for most member states to achieve good status for all waters”, a key target in the WFD, due to the “sheer pressure from human populations, industry and agriculture”. As a result, he said it was “likely that member states and the EU Commission will need to consider extending the WFD deadline in some way or revising water quality objectives looking beyond 2027”.

Health and Harmony and the Agriculture Bill

125.In February 2018, the Government published a consultation - Health and Harmony: The Future for Food, Farming and the Environment in a Green Brexit.331 It set out a new agricultural policy to replace current Direct Payments under the EU’s Common Agricultural Policy that would be based on new principles:

Our aim is for public money to buy public goods. In 25 years’ time, we want cleaner air and water, richer habitats for more wildlife and an approach to agriculture and land use which puts the environment first. From 2022 onwards, a new environmental land management system will be the cornerstone of our agricultural policy, achieving improved biodiversity, water, air quality, climate change mitigation, and the safeguarding of our historic landscapes. This will allow us to fulfil our manifesto commitment to become the first generation to leave the environment in a better state than we found it.332

126.It stated that there was an opportunity to enhance measures to deal with the interconnected issues of soil health, water pollution and ammonia emissions333 but also wider goals of air quality and climate change.334 As direct payments from the CAP are reduced and phased out they would be replaced by new Environmental Land Management Schemes, collaborative projects in areas such as diffuse pollution, and capital grants.335

127.On the 12th September 2018, the Government published the Agriculture Bill.336 Clause 1 of the Bill set out powers to move towards a new system based on paying public money for public goods, including environmental protection, tackling climate change, improving the productivity of agricultural, horticultural or forestry activity and reducing flooding. The Explanatory Notes to the Bill state that environmental outcomes will include clean air, clean and plentiful water and thriving plants and wildlife through the carrying out of environmentally beneficial land and water management activities. The Explanatory Notes gave the example of incentivising the planting of trees around farms to capture ammonia emissions and protect nearby sensitive habitats from damaging nitrogen deposition.337

128.Clause 5 of the Agricultural Bill states that there will be a seven-year transition period from the old CAP system to the new system starting in 2021 and ending in 2027.338 The Minister told us that direct payments to farms would continue until 2021 and would match overall CAP payments to the end of the current Parliament.339 During the transition period to the new system, payments would be slowly reduced to free up funds, with reductions dependent on the size of the farms receiving them.340 For instance, the consultation on the Agriculture Bill stated that during the transition to the new system the Countryside Stewardship scheme would be opened up in 2019 to make it easier for farmers to apply for funding.341 The Minister said that the transition would allow farmers to adjust and ease the roll out of a new IT system to manage the new regime.342 The EA said that it was currently looking at how it will support the new regime.

129.A number of witnesses agreed that when the UK leaves the EU, the Government should incentivise farmers and other land managers to go beyond regulations and best practice.343 This included supporting farmers to use natural infrastructure, such as wetlands and forests,344 but also cover crops and grasslands,345 to ensure that nitrates were fixed in the land by compensating them accordingly for such changes in land use and reduced profitability.346 It was suggested that the Government should give more support to farmers for using less artificial fertiliser,347 use stricter limits on the use of fertiliser in NVZs,348 and consider extending NVZ areas.349 There was also support for more investment in farm infrastructure, such as improved slurry stores and covers,350 increased investment in research to improve nutrient efficiency and advice for farmers,351 and water troughs to keep animals away from water courses.352 Other evidence called for better detection technology to identify pollution at source.353 However, the Royal Society for the Protection of Birds has expressed concerns that a system that moves towards payments for ecosystem services runs the danger of undermining the polluter pays principle because it moved the emphasis away from polluters and victims to providers and beneficiaries.354

130.The Minister said that the Government had tried to flex existing funding streams such as the Rural Development Programme to make capital grants available to farmers to invest in covers for slurry stores and was looking to roll out similar projects.355 However, he said that he envisaged a “future scheme having capital elements to make sure we are really supporting that kind of investment in infrastructure”.356 He also said that the Government should be prepared to incentivise different approaches to the management of soils, reduced application of fertilisers and increased use of cover crops during the winter.357 He said it was about “proactively supporting and incentivising the right sorts of behaviours”.358 He maintained that while the “polluter pays” principle was important and was included in the Environment Plan, and that negligence and recklessness should be addressed, it should not be an obstacle to encouraging farmers to join schemes that tackle pollution or an excuse for inaction.359

131.Despite the Minister telling us that the Government had no intention of watering down commitments on reducing water pollution and improving water quality we are very disappointed that the Water Framework Directive (WFD) target of ‘good status’ for all ground and surface waters in the EU by 2027 has not been retained within the 25 Year Environment Plan. The Plan’s aim to ensure that at least three quarters of our water will be close to their natural state as soon as is practicable is a significant watering-down of the aim in the Directive. This retreat seemed to be confirmed by the Secretary of State’s subsequent letter to the Chair concerning the challenging nature of the 2027 WFD target. We also question the absence of targets and key milestones within the Plan. The Minister contended that overall trends are more important, but interim targets and milestones are vital stepping stones to guide policy and measure progress. While we support the use of public funds to support the provision of public goods this must not undermine the polluter pays principle and public money should fund public goods which go above and beyond compliance with regulatory requirements.

132.The Government should, as part of its upcoming environmental legislation, and as we argued in our report on its 25 Year Environment Plan, produce robust targets and milestones to underpin legally binding targets on water quality. If there is any weakening of long-term and interim national, EU or international water quality targets, the Government needs to provide an explanation of where they are weaker and why. We look forward to seeing the metrics for nitrate and water pollution by the end of the year, which we hope will underpin clear targets in line with or exceeding those set out in the Water Framework Directive.

Northern Ireland and The Republic of Ireland: Regulatory Alignment

133.We considered the implications of the Prime Minister’s promise of “full regulatory alignment” whereby Northern Ireland would have ongoing alignment with the Republic of Ireland, and by implication the EU, to avoid a hard border while at the same time maintaining alignment with the rest of the UK. There has been much debate as to how and whether these two things can be reconciled if the UK has a different regulatory regime from the EU.360 Currently there is still disagreement between the UK and EU on how a hard border can be avoided,361 and doubts have been expressed as to whether the issue can be resolved.362 The answers to these questions are beyond the scope of this inquiry. However, the Government has indicated that the environment is an area where full regulatory alignment would apply,363 and Defra have confirmed that water quality management in a cross-border context has been identified as an area of North-South cooperation within the scope of EU negotiations on UK withdrawal from the EU.364 In terms of nitrate pollution and water quality the issue of “full regulatory alignment” is given more prominence because Northern Ireland and the Republic share three international river basin districts.365 Presently there is cooperation between bodies on either of the border. The Environmental Protection Agency in Ireland is represented on the UK wide Water Framework Directive Technical Advisory Group (UKTAG) which advises on the technical implementation of the WFD for water quality management. The North South Working Group on Water Quality (containing representatives from Ireland and NI Government Departments as well as the relevant environment agencies in Northern Ireland and Ireland) also meets to discuss areas of co-operation and progress on the implementation of European water Directives.366

134.The Wildlife and Countryside link told us that coordination groups on either side of the border were very concerned as to how the current catchment-based approach for shared water bodies would work and whether there would be consistency if the UK deviates from EU standards.367 The Ulster Farmers’ Union said that there had to be a cross-border mechanism that allowed flexibility. It said that though there were currently different rules on both sides of the border, the issue for farmers was how different they would be and how far the UK deviated from EU standards such as the Nitrates and Water Framework Directives. It said that the “sooner we know that information we can get on with dealing with businesses and getting businesses to adapt”.368 The Environment Agency told us that England currently shared water bodies with Scotland and Wales and that common sense generally prevailed in terms of cooperation and that Northern Ireland and the Republic had the technical advisory bodies to coordinate actions and policies after the UK leaves the EU.369 However, such coordination between different countries and nations within the UK is within the overall context of EU legislation which will no longer be the case when the UK leaves the EU. If there is divergence between the UK and the EU this will present a challenge for full regulatory alignment between Northern Ireland and the Republic. This will apply to shared water bodies but also other areas, such as ammonia emissions. The Minister told us that there had been no progress on the issue of regulatory alignment and that it needed to be “added to the list of Northern Ireland Border issues in the context of Brexit”.370

135.We are concerned that if UK and EU policies on nitrate pollution and water quality diverge in the future it will present challenges for Northern Ireland, particularly its farmers, where there are shared water bodies. Regulatory alignment could also have an impact on the Government’s proposals to tackle ammonia emissions through its Clean Air Strategy if there is a divergence in this area as well. The Government should produce a strategy for dealing with future divergence for both water and air quality. This should include proposals for sharing river basins that span the Irish border according to catchment management principles.

303 Department for Exiting the European Union, EU (Withdrawal) Bill Fact Sheet 8: Environmental Principles, (May 2018).

304 George Eustice MP Q235

305 Helen Wakeham (Environment Agency) Q234

306 EAC, The Future of the Natural Environment after the EU Referendum, (HC 599; January 2017), pp 15–20. See also: Politico, Brexit threatens environmental law enforcement, (January 2018);

307 See EAC, The Government’s 25 Year Plan for the Environment, (HC 803; July 2018), pp 19–33. This issue was also raised in relation to UK regulation of F-gases after the UK leaves the EU - see: EAC, UK Progress on Reducing F-gas Emissions, (HC 469; April 2018), p 26.

308 EAC, The Government’s 25 Year Plan for the Environment, (HC 803; July 2018), pp 25–26. See also : European Commission , How to submit a complaint to the European Commission, (accessed July 2018). Defra and the Environment Agency told us that complaints can be made to the relevant regulator, such as the Environment Agency in England, or Devolved Administration in the usual manner, following published guidelines (NO30053). However, the point is that complaints can be made to the Commission when UK regulators have not acted on breaches and complaints.

309 For instance, in May 2017 the ECJ ruled against the UK Government on a number of breaches of the Urban Waste Water Directive dating back to 2009 (see Environmental Analyst, At-source’ water treatment dealt blow by EU court ruling, July 2018) and the judgement noted that the original case hinged on “various citizens’ complaints”. This has also been the case for UK breaches of air quality - see: Client Earth, UK Government loses third air pollution case as judge rules air pollution plans ‘unlawful’, (February 2018).

310 The Bill received Royal Assent on the 26 June 2018.

311 European Union (Withdrawal) Act 2018, Section 16. Section 16(2) of the EU (Withdrawal) Act 2018 states that the principles, however worded, must include: the precautionary principle so far as relating to the environment; the principle of preventative action to avert environmental damage; the principle that environmental damage should as a priority be rectified at source; the polluter pays principle; the principle of sustainable development; the principle that environmental protection requirements must be integrated into the definition and implementation of policies and activities; public access to environmental information; public participation in environmental decision-making, and access to justice in relation to environmental matters.

312 Environmental Audit Committee, 25-Year Environment Plan, (HC Paper 803; April 2018), Q118.

313 Environmental Audit Committee, The Government’s Environmental Policy, (HC Paper 544; November 2017) Q1–2.

315 See Above, pp 20–34.

317 EAC, The Government’s 25 Year Plan for the Environment, (HC 803; July 2018), p 50.

319 EAC, The Government’s 25 Year Plan for the Environment, (HC 803; July 2018). See also: House of Commons Library Standard Note, The 25 Year Environment Plan, (January 2018).

320 On air quality, the plan said it would be achieved by: meeting legally binding targets to reduce emissions of five damaging air pollutants, including ammonia and nitrogen oxides, to halve the health effects of air pollution by 2030; ending the sale of new conventional petrol and diesel cars and vans by 2040; maintaining continuous improvement in industrial emissions by building on existing good practice and regulatory frameworks. See: Defra, A Green Future: Our 25 Year Plan to Improve the Environment, (January 2018), pp 97–99.

321 As above, p 25.

322 As above.

323 See House of Commons Library Standard Note, The 25 Year Environment Plan, (January 2018), pp 16–17.

324 George Eustice MP Q234.

325 George Eustice MP Q 245.

326 George Eustice MP Q250.

327 Environmental Audit Committee, The Government’s 25 Year Plan for the Environment, (HC 803; 24 July 2018), Q86.

329 Helen Wakeham (EA) Q 247–248.

330 Defra and Environment Agency NO30053

331 Defra, Health and Harmony: The Future for Food, Farming and the Environment in a Green Brexit, (Cm 9577; February 2018). The consultation closed on the 8 May 2018.

332 As above, p 15. Such environmental pubic goods would also include soil health (p 32) and working towards achieving world-class animal welfare, high animal health standards and the protection of crops, tree, plant and bee health (pp 33–34).

333 As above, p 36

334 As above, pp 32–33. This includes a focus on nitrous oxides as both pollutant and Green House gas.

335 As above, p 37.

336 Defra, Agriculture Bill 2017–19, (Bill 266 of 2017–2019; September 2018).

337 Defra, Agriculture Bill: Explanatory Notes, (Bill 266-EN; September 2018).

338 As above p 15. Clause 5(2) gives powers to the Secretary of State to extend the agricultural transition period.

339 George Eustice MP Q221-Q223.

340 Defra noted that these payments, that are currently “not linked to any specific public benefits”, are skewed towards the largest landowners with the top 10% of recipients currently receive almost 50% of total payments, while the bottom 20% receive just 2%. See: Defra, Landmark Agriculture Bill to deliver a Green Brexit, (September 2018).

342 George Eustice MP Q224.

343 David Johnson (Wildlife and Countryside link) Q55, Q68-Q69, Q71-Q72 and Q84; Will Andrews Tipper (Green Alliance) Q56; Fraser McCAuley (Country Land and Business Association) Q159-Q160; Green Alliance NO30042; Yorkshire Water Services NO30021; Country Land and Business Association NO30002; NFU NO30012.

344 See Wildlife and Countryside Link NO30032. This has been an approach used in Denmark. For instance, by 2021, Denmark is aiming to have introduced 1,000 mini wetlands with an assumed average effect of fixing 900kg of nitrogen per wetland. See also National Trust NO30046; Brighton ChaMP NO30027.

345 Soil Association NO30038; Anglian Water NO30022.

346 Paul Cottington (NFU) Q199-Q201 and Helen Browning (Soil Association) Q146. Germany, for example, provides compensation to farmers who implement groundwater protection measures.

347 David Johnson (Wildlife and Countryside link) Q69. Germany for instance has plans to ban the use of urea fertiliser by 2020 and it is thought France will follow. See also National Trust NO30046.

348 Professor Dave Reay NO30001; Anglian Water NO30022; Brighton ChaMP NO30027.

349 Professor Dave Reay NO30001.

350 Helen Browning (Soil Association) Q198 and Q202; Jane Salter (AIC) Q198; David Johnson (Wildlife and Countryside link) Q69

351 Both France and several US States, such as California, have provided substantial funds for research into methods and technologies that can reduce nitrate leaching. See Anglian Water NO30022; John Innes Centre NO30023.

352 Paul Cottington (NFU) Q201.

353 Professor Dave Reay NO30001.

354 Rachel Salvidge, ‘Polluter pays principle ‘at risk of being undermined’, ENDS Report, (December 2016).

355 George Eustice MP Q280.

356 George Eustice MP Q281.

357 George Eustice MP Q289.

358 George Eustice MP Q296.

359 George Eustice MP Q277 and Q294-Q295.

360 See House of Commons Library, Brexit: ‘sufficient progress to move to phase 2’, (December 2017), pp 31–41; House of Lords Library, Leaving the EU: Role of the Devolved Administrations and Implications for the Union, (January 2018), pp 16–18; Anthony Costello, The UK needs to clarify what ‘full regulatory alignment’ means before the next phase of the Brexit talks, LSE European Institute, (January 2018); Business Green, Could the Irish border hold the key to a green Brexit?, (December 2017).

361 The EU has proposed a backstop that would mean Northern Ireland staying in the EU customs union, large parts of the single market and the EU VAT system. The UK Government opposes this idea. The Prime Minister has said that the EU’s proposal would threaten the constitutional integrity of the UK. She has instead suggested a backstop that would see the UK remaining aligned with the EU customs union for a limited time after 2020. See BBC News Online, Q&A: The Irish border Brexit backstop, (17 July 2018).

362 See: Danial Boffey and Lisa O’Carroll, Barnier stands firm on post-Brexit border in Irish Sea, Guardian, (31 August 2018); James Blitz and Alex Barker, UK and EU set to miss target of Brexit deal by October, Financial Times, (29 August 2018; Peter Foster, Why the Irish backstop issue is the Brexit poison pill that cannot be swallowed by any side, Telegraph, (19 July 2018);

363 The Prime Minister noted on 11 December 2017 that the environment would be one of six sectors, alongside waste and water management, the electricity market, agriculture, and questions relating to road and rail transport, where there would be ‘full regulatory alignment’. HC Hansard, 11 December 2017, col 38.

364 Defra and Environment Agency NO30053.

365 Defra and Environment Agency NO30053.

366 Defra and Environment Agency NO30053.

367 David Johnson (Wildlife and Countryside link) Q87.

368 Aileen Lawson (Ulster Farmers Union) Q166–168.

369 Helen Wakeham (Environment Agency) Q300–301.

370 George Eustice MP Q303–304.

Published: 22 November 2018