4Governance
48.If the 25 Year Plan is to be implemented properly, it should mark a significant change for the governance of the environment in the UK. Once it leaves the EU (following the conclusion of any transition deal), the UK is likely to cease to be subject to the current regulations, oversight mechanisms and policy development structures which currently apply. Currently the European Commission monitors and advises on the application of environmental obligations and the Court of Justice of the European Union (CJEU) provides definitive interpretation through its judgements, and enforcement, including a power to fine member States.
49.In 2016, our predecessor Committee raised concerns about so-called “zombie legislation”: their concern was that EU environmental legislation might be transposed into UK law without the means to enforce, update, report upon or develop it further as these functions have been carried out at an EU level.77 One of our main propositions to fill this gap was the creation of an independent oversight body. The witnesses to our inquiry were particularly keen that this oversight body should have powers of enforcement;78 a monitoring system which would enable Parliament to take part in the governance of the Plan;79 and, that the Plan would be embedded throughout all Government departments.80
A New Oversight Body
50.The Consultation commits to the “creation of a new, independent, statutory environment body”, but does not set out proposals for the nature, shape or structure of this oversight body. It suggests that there are a number of models that could be used, such as an individual Commissioner or a group (a Committee, Commission or Board) or other arrangements independent of Government.81 Ruth Chambers from Greener UK told us that the lack of practical detail on the nature of the body shows that the Government’s intention for it to be independent has been ‘kicked into the long grass’.82
51.Martin Nesbit told us that it is inevitable that the new body will be at risk of abolition as “history is littered with the corpses of environmental watchdogs and sustainable development watchdogs”, which have been created and then killed off by subsequent Administrations (see case study).83 Lord Deben highlighted that there is a long history of bodies “starting off as independent and being brought more and more under the control so that they now sit in the Department”.84 He pointed to the Environment Agency and Natural England as examples of delivery bodies where this has happened through cuts in government funding,85 limiting their powers and independence.86 Sir Amyas Morse agreed:
They get their budgets cut and they get pressure applied to them in other ways. If that pressure is capable of being applied, it is probably fair to assume that over a number of years it will be applied. It is not being cynical, it is just how it works. Yes, a form of Thomas Becket syndrome works every time.87
|
Case Study: Previous Environmental Watchdogs Sustainable Development Commission (2000 - 2011) The Sustainable Development Commission (SDC) was a non-departmental public body responsible for advising the UK Government, Scottish Government, Welsh Assembly Government, and Northern Ireland Executive on sustainable development. It had an official watchdog function, scrutinising Government progress on implementing its sustainable development strategy: monitoring targets on the sustainable management of the Government estate and procurement. It also provided policy advice and helped to build capability across a range of departments. The SDC had a staff of 60, supporting 16 Commissioners in the year 2010–11. It was abolished in 2011 under the Government’s Structural Reform Plan which included budget cuts to DEFRA.88 Royal Commission on Environmental Pollution (1970 - 2011) The Royal Commission on Environmental Pollution was created under Royal Warrant in 1970 to advise the Queen, Government, Parliament and the public on the environmental issues. It produced many influential reports on the natural and built environment until it was abolished by the Government in 2011 under the Government’s Structural Reform Plan. English Nature (1990 - 2006) English Nature was a non-departmental public body funded by DEFRA that promoted the conservation of wildlife, geology and wild places. It provided statutory advice, grants and issued licences. In 2006 it was merged with the Countryside Agency and Rural Development Service to form Natural England. Natural England has been criticised for not having an independent voice from government. For example, it lost its independent website and press office, which means it has no distinct ‘voice’ from DEFRA, whereas English Nature is largely acknowledged as being a ‘critical friend’ to Government.89 Environmental Audit Office When this Committee was first established in 1997 it was envisaged that there would be a supporting Environmental Audit Office. This would have had rights of access, resources for analysis and reporting to the Committee, in a similar way to the Public Accounts Committee being supported by the National Audit Office. The Committee received valuable support over the years from the Sustainable Development Commission (before it was abolished) and the National Audit Office. However, the body as originally envisaged was never created, leading to what the first Environment Audit Committee called an “audit gap”.90 Commission for Rural Communities (2006–2013) The Commission for Rural Communities acted as an advocate, expert adviser and independent watchdog, monitoring and reporting on the delivery of policies nationally, regionally and locally. Its aim was to ensure that policies and decisions took account of rural communities. It was abolished with the explanation that policy advice would be best placed within Government departments.91 DEFRA established the Rural Communities Policy Unit to take on this work which was later subsumed into DEFRA’s Rural Policy Team. |
52.We heard from many witnesses that the body should be accountable to Parliament to maintain its independence from Government in a similar way to the National Audit Office (NAO).92 Jill Rutter from the Institute of Government confirmed that this would be one way to ensure the body’s funding and independence from Government.93 The NAO is a useful comparator for the oversight body in two respects: It is a scrutiny body with statutory powers around access to documents that Government departments are required to comply with and it has a statutory guarantee of its independence.94 The Comptroller and Auditor General, Sir Amyas Morse described how the NAO’s governance arrangements maintain its independence and freedom to be critical of the Government:
… we are funded directly by Parliament, not by a Department, so they cannot cut our money based on whatever considerations there may be. We are not directed by them as to what we should do. I have this personal office and I have a very wide degree of discretion as to what I do. … it has to be not in the reach of Government. That is what being independent means. You cannot be independent if you are a civil servant; that is just not going to happen and over time that will be eroded. I have seen that in virtually every example I have looked at.95
53.Lord Deben argued that the Committee on Climate Change’s independence is derived from:
- being established in statute with a specified reporting timetable;
- the appointment and dismissal of the Chair are by the responsible ministers acting jointly across the UK, Scottish, Welsh and Northern Irish governments; and
- it has the ability to undertake its own investigations.96
He suggested that a lesson learnt from the CCC, is that the new body should have an independently assessed funding arrangement.97 Since 2010–11, the combined CCC and ASC budget has reduced by 31 per cent.98 Amyas Morse added that in order for the body to be viable and maintain awareness across Government, it would need to be of a reasonable size with “a reasonable number of senior people”.99 He observed:
Just bear in mind, the NAO is 800 people. We do an awful lot of things besides writing reports that are published in Parliament and we have an awful lot of contact with the bodies we are commenting on, so we know a lot about them. We are well-placed to make comments.100
The Committee on Climate Change has a staff of 30 who provide analytical and corporate support to the Committee and the Office for Budget Responsibility has a staff of 27 civil servants but relies on departmental staff to do its modelling.101
54.Maintaining independence from Government will be essential to the oversight body’s effectiveness. When we asked the Secretary of State how this independence could best be achieved, he pointed to the strength of the National Audit Office:
Sir Amyas [Morse] and the National Audit Office, everyone recognises. He is a formidable individual, it is a formidable body. I think any Government that were to attempt to either silence him or clip its wings would generate something of a backlash. I think it would be the case that if any future Government were to try to erode the independence or the authority of this body, then it would pay a heavy price for doing so.102
55.The Secretary of State also suggested that the oversight body’s budget should be transparently reported so the Government could be held to account and acknowledged that it would be up to DEFRA to “provide appropriate resources”.103
Enforcement Powers
56.Witnesses provided suggestions for the most important powers which the oversight body requires. Crucially, they emphasised that the oversight body requires the power to enforce environmental policy (see box).104 Dr Benwell argued:
it needs to offer affordable access to justice for citizens, which is something that is guaranteed under the EU complaints process at the moment and that we do not have here in the UK at the moment. Judicial review is expensive. It needs to have the powers to bring its own cases against Government. There is always the question of fines, which has been so important at the European level. The threat of daily fines for not meeting targets has the power to focus minds extremely quickly in Government on changing things.105
|
Case study: Enforcement of air quality laws The European Commission (EC) monitors and advises on the application of environmental obligations and the Court of Justice of the European Union (CJEU) provides definitive interpretation through its judgements, and enforcement, including a power to fine member States. The EC stated in 2013 that it would like to “to achieve full compliance with existing air quality standards by 2020 at the latest”.106 On 17 May 2018, the European Commission referred the UK and five other EU Member States to the CJEU for failing to respect agreed air quality limit values for nitrogen dioxide (NO2), and for failing to take appropriate measures to keep exceedance periods as short as possible.107 The Commission also issued a letter of formal notice to the UK on the grounds that it has disregarded EU vehicle type approval rules with respect to Volkswagen’s use of defeat device software to circumvent emissions standards for certain air pollutants. Member States have two months to respond to the arguments put forward by the Commission and provide additional information. Where EU law on ambient air quality is breached, Member States have to adopt air quality plans and ensure that they achieve compliance within the shortest possible time. |
57.The enforcement of EU law with the threat of legal sanctions and recourse has been shown to be fundamental to improving air quality plans in the UK and elsewhere in the EU. Witnesses argued that a similar level of enforcement would be needed from a future oversight body to ensure environmental rules are followed once the UK leaves the EU. The Consultation only touches briefly on enforcement powers, stating that the “Government believes that advisory notices should be the main form of enforcement”, although it states there “there may be a case to introduce other enforcement mechanisms”.108 The amended EU (Withdrawal) Act creates provisions for “proportionate enforcement action (including legal proceedings if necessary)” where the body considers that a Minister is not complying with environmental law.109 Ruth Chambers suggested that it also needed the power to “intervene in legal proceedings brought by other bodies and not just initiate legal action on its own”.110 Ruth Davis explained that there are also opportunities to explore where the resultant fines could be used to fund environmental outcomes.111 The Marine Conservation Society argued that fines were genuinely dissuasive,112 and there are also opportunities to be creative, for example through using fines for “restoration orders”.113
58.Jill Rutter explained that the EU would be “looking at the quality of domestic enforcement” when negotiating a future free trade agreement. She warned that their demands would be for a level playing field across the UK and EU as they are “so worried about the risk of undercutting from the UK”, and the demands would be greater than those placed on Canada.114
59.When the Secretary of State was asked what enforcement powers he had in mind for the oversight body on 18 April he emphasised their importance and that they should match or improve upon those in the EU. He said that:
I think enforcement powers are important and the enforcement powers 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.115
Other Governance Functions
60.There are numerous functions that the European Commission and the European Environment Agency perform that could be undertaken by the new oversight body. Many witnesses suggested these additional roles should fall to the new body,116 however some, such as Baroness Brown, Chair of the Committee on Climate Change Adaptation Sub-Committee (ASC), suggested that it may be more appropriate to divide the enforcement and scrutiny roles between different bodies to ensure that advice was impartial.117
Strategic Oversight
61.The need for the oversight body to carry out further governance functions was raised by witnesses. For example, Professor Jordan observed that: “The Commission has been very good at offering long-term strategic thinking through these environmental action plans and programmes”.118 It has offered policy evaluation and formulation, both of which will need to be replaced by the Government. The Secretary of State indicated that he was minded to include such powers within the same body.119
Scrutiny and Advice
62.The Consultation suggests a role for the body to conduct and publish independent reports on progress against the Plan’s targets based on the Government’s reports and reports on specific environmental measures. It suggests that the body could also respond to Government consultations on potential future policy.120 The RSPB suggests it should include the ability to scrutinise the “action or (inaction) of governments and public bodies and the adequacy of existing laws, requirements and targets”.121
Investigations
63.If the watchdog is to be able to exercise such powers it will require a significant degree of independence to set its own agenda. Witnesses emphasised the importance of the oversight body’s independence, and the need for proactive powers of investigation.122 The Chartered Institution of Ecology and Environmental Management suggested the new body must have the power to initiate investigations independently, including against public bodies possibly breaching the law.123 Lord Deben told us the CCC’s ability to undertake investigations is “a very important part of the role”:
… it is a huge advantage for the Climate Change Committee that if we feel that something has to be investigated we have every right to do so, we do not have to wait for the Government to ask us to do it. We have three possibilities. One is to do it ourselves, the other is to ask the Government to ask us and the third is to be asked by the Government to do it. This is a kind of freedom that is important …124
Complaints Mechanism
64.Individuals can raise with the EU Commission, in its role as guardian of the Treaties, complaints of breach of EU law. It maintains a service through its website whereby individuals and organisations can lodge complaints, free of charge, about alleged breaches of EU law.125 The Consultation states that “broadly speaking” the intention is to afford at least the same opportunities as currently exist with the EU institutions.126 Ruth Chambers from Greener UK argued that the ability for the new body to facilitate complaints by civil society was the most disappointing aspect of the Consultation:
In order to replicate what we have at the moment, we need a citizens’ complaint mechanism and the body needs to be able to administer that … For example, any citizen of the UK would need to be able to have the ability to bring a complaint before the body. That sort of complaint needs to be open to all and it needs to be done in a transparent way …127
She also stressed that it must have a “free mechanism” for any citizen to be able to participate in.128 This will hold government to account for its performance on the environment by empowering citizens, giving them a straightforward means of referring concerns.
Scope and Application
65.To achieve equivalent arrangements within the EU, the Government believes it is sensible to limit the scope of the new body to examine the relevant activities of Government departments in England (i.e. central Government departments). Its justification is that central Government will be able to address failures by other bodies such as Arm’s Length Bodies (ALBs) and local authorities. Much of our evidence on this was to the contrary.129 Professor Lee told us that the European Commission is in a “completely different position” with its origins in international law and it would be more efficient to have direct accountability. This would also enable public bodies to comply with their obligations relatively free of political pressure.130
66.The Consultation states that there is a risk of overlap and duplication with the roles of the Local Government and Social Care Ombudsman (LGSCO) and the Parliamentary and Health Service Ombudsman (PHSO). Both Ombudsmen wrote to us to say they were engaging with DEFRA to avoid the risk of any duplication of their roles.131 The Brexit and Environment group acknowledge there could be an overlap with a range of bodies and suggest the body should have the scope to “investigate compelling cases involving ALBs or local authorities in consultation with other bodies”.132 On the role of the Ombudsmen, the RSPB consider that their focus is on procedural issues rather than the merits of any decisions made. It, too, suggests that strategic cases, or those of national importance could be investigated as is the case currently with the actions of the EU Commission.133 Sir Amyas Morse highlighted that the NAO’s remit overlaps with regulatory bodies and it has not been a problem. He supports a wide scope for the body:
I just do not regard it as a major problem, that there might be a regulatory clash. Most of the regulators with direct enforcement powers have specific areas that they look at. That is a point, if I may: this body that we are talking about has to range across all activity in the UK, not just the Government, but certainly all Government activities in the UK. It is important that it be free to do that. If it is going to be effective, it has to be sufficiently agile that if there is an issue occurring in some part of the public sector that it can go there and pinpoint that issue.134
Climate change
67.The Consultation proposes that the body should not include climate change within its scope, instead relying on the “robust mechanisms” of the Climate Change Act and the international governance structure under the UNFCCC. Evidence from the Committee on Climate Change (CCC) suggests this will be “artificial and potentially create problems”.135 Baroness Brown described how interlinked climate change adaptation and the Plan are:
… I think it is impossible, particularly in the environment and the adaptation side, to separate our progress in terms of adapting to climate change from things like having thriving plants and wildlife, which is one of the objectives of the 25 Year Environment Plan. In the Adaptation Sub-Committee’s last two reports to Parliament, 39 of our 64 recommendations have been in the areas that are covered by the 25 Year Environment Plan, so these things are closely knitted together.
68.The CCC also highlights that there is no ombudsman role for climate change and the new watchdog should have the ability to consider climate change as part of an assessment of the Plan.136 Professor Lee’s evidence also indicates that it would be practically difficult to exclude climate change from the remit as it “pervades other areas of environmental law”.137 Detailed protocols could be established to avoid overlap between the two bodies, such as those the ASC has with the Environment Agency, Natural Capital Committee and National Infrastructure Commission.
69.The Secretary of State has acknowledged the importance of European Union institutions’ role in enforcing environmental protections. The Government must not allow leaving the EU to weaken environmental protection in the UK. As a minimum, the proposed watchdog must replicate or build on the role the EU institutions play in protecting our environment. The Government’s proposals as yet do not do that. The draft bill required by the European Union (Withdrawal) Act must do so.
70.The Government should create in UK law an independent oversight body—The Environmental Enforcement and Audit Office (EEAO)—reporting to Parliament to ensure, not only that the governance, enforcement, oversight and policy functions currently carried out by the European Commission and European Environment Agency are not lost on leaving the EU, but that these functions are strengthened in order to enable delivery of the Government’s stated objective of restoring as well as maintaining the state of the UK’s nature and biodiversity.
71.A statutory body of parliamentarians, modelled on the Public Accounts Commission, should set the EEAO’s budget, scrutinise its performance and oversee the governance of the EEAO. The Chair of the Environmental Audit Committee should be a member of this body and their endorsement should be required for the appointment or dismissal of the EEAO’s Chair following the procedure for that of the Comptroller and Auditor General. If the oversight body is established on a UK-wide basis then the devolved legislatures may also wish to establish their own governance arrangements.
72.The EEAO’s remit should include advising on and monitoring how public authorities are complying with their duties, providing strategic oversight and reporting bi-annually to Parliament on progress against the Government’s environmental targets, including scrutiny of the 25 Year Plan progress reports. It should have the power to initiate its own investigations and report directly to Parliament.
73.The Government should ensure that the draft Environmental Principles and Governance Bill includes effective and proactive enforcement powers, with the power to fine government departments and agencies that fail to comply. The EEAO should be a body with an enforcement function within, or alongside its scrutiny function. The enforcement function should investigate compliance with environmental law, including complaints brought by the public, which the courts can then adjudicate. Any resulting fines from sanctions should be ring-fenced and used for an environmental fund for remediation works overseen by the EEAO.
74.The governance consultation explicitly removes climate change from the oversight body’s remit, creating an artificial divide. We recommend that the Committee on Climate Change and its Adaptation Sub-Committee maintains the lead role for climate change. The EEAO should be able to conduct its own investigations on climate change and should have a role for enforcement where legal duties are breached. We anticipate that the two bodies would work closely together and their work would be mutually reinforcing.
Geographic Coverage and Devolution
75.The 25 Year Plan is, for the most part, a plan for England. However, as part of these inquiries and others, we have heard evidence about the desirability of co-operation between the four administrations in some areas of governance and policy.138 The Plan states that it will continue to work with the devolved administrations on “our shared goal of protecting our natural heritage”.139 The UK Government is currently in talks with the Scottish Government over the operation of devolved powers during the period following exit from the EU.140 Negotiations with the Welsh Government concluded in April 2018 with an agreement that any changes to powers held in Westminster will require the consent of the devolved administrations and that powers currently exercised by EU officials in Brussels will remain with Westminster for no more than seven years.141
76.The Consultation proposes that the oversight body will cover England and environmental matters that are not devolved. A report by the Institute for Government (IfG) suggested that the body would be “more effective with a four-nation remit” as it would be more robust in its monitoring of government and less prone to abolition.142 Many witnesses supported the idea that there are clear environmental benefits to a UK-wide approach, as the environment does not respect borders.143 One precedent is the Committee on Climate Change, which advises the UK Government and Devolved Administrations and is jointly sponsored by them. Jill Rutter indicated that the CCC shows “you do not have to have identical approaches to have a body that can report on progress” and Lord Deben described the CCC as having a “very good relationship” with the devolved Governments.144 The Sustainable Development Commission and the Royal Commission on Environmental Pollution also had UK-wide remits.
77.Greener UK explained a number of advantages to having a UK wide body, but noted that it would take more time to set up and, unless it was co-designed with the devolved administrations, it might be seen “as undermining devolution and thus unacceptable”.145 The IfG argued that the body would be more effective if the Governments of each constituent part of the UK were involved in its creation:
a four-nation watchdog will work best if it is the product of a four-nation approach, rather than designed in the centre with the option for the devolved administrations to join and use the body if they wish. The watchdog will only be effective over four nations if there is a shared sense of ownership, which requires genuine co-design.146
78.The Law Society of Scotland was “concerned about the limited level of UK-wide planning and discussion which has taken place”.147 Wildlife and Countryside Link’s evidence stated that co-operation does not seem to be happening:
We are greatly concerned that there has been no truly intergovernmental processes or equal-basis engagement. For instance, DEFRA appears not to have shared the principles and governance consultation with devolved administrations before publishing it. … DEFRA has simply pushed ahead with its own plans, merely inviting the other countries to join in rather than working with them to shape a joint approach.148
79.Replying to an inquiry from the Committee, the Welsh Government welcomed that the UK Government was open to the idea of co-designing the body.149 It also pointed out that in Wales, the settlement does not extend to justice matters and therefore it does not have the same ability as the other nations of the UK to address any gaps in this area. The Permanent Secretary of the Department for Agriculture, Environment and Rural Affairs in Northern Ireland, also welcomed the offer to co-design the governance proposals but added that “we did not have prior knowledge of the detail of the consultation before it was published”.150 The Cabinet Secretary for Environment, Climate Change and Land Reform in the Scottish Government had “not yet concluded what the best approach in Scotland would be,” but added that it was “ready to co-operate” with the UK Government and other devolved administrations.151 She too had not had sight of the consultation before it was published:
It is unfortunate that the Scottish Government, and a number of Scottish stakeholders, were not fully engaged by the UK Government in the development of the proposals set out in the UK Government’s recently published consultation.152
80.In November 2017, the Secretary of State told us that he did not have the jurisdiction to impose a body in Scotland, Northern Ireland and Wales. He noted that he was keen to work together with them:
We are very keen to get down to the nitty gritty of discussion on what should be in those frameworks with the DAs. […] As we, as the Government, come forward with our ideas about what might occupy the space in England I hope we can work with the DAs in order to ensure there are similar institutions operating in their territories as well.153
81.We have heard compelling arguments that a UK-wide oversight body would be more resilient, more independent and provide the best level of environmental protection. This could be achieved by the oversight body being co-designed and co-owned to create a ‘four nation’ remit. However, the process of agreeing such an institution needs to be a conversation between Governments and legislatures, not an imposition from Westminster. The draft Bill must be published by December this year, so the conversation should already be under way. We are concerned that there is little evidence of progress so far.
Common Frameworks
82.Environmental policy is devolved to Scotland, Wales and Northern Ireland. As our predecessors have discussed in previous reports, European Union law has provided a common framework within which domestic institutions have operated.154 Previous Committee inquiries have highlighted that common frameworks are vitally important to prevent any undermining of environmental protections to gain a competitive advantage.155 There are also benefits of co-operation between administrations such as the exchange of skills and knowledge. Dialogue between the four administrations has the potential to improve environmental policy in areas where one or more of the four nations is currently leading the way.
83.The Government’s analysis suggests there are 82 areas in which common frameworks may be necessary after leaving the EU, as well as in 24 areas where further discussion will be necessary to determine whether a common framework may be needed in full or in part.156 Common frameworks may be implemented by legislation, by executive action, by memorandums of understanding, or by other means depending on the context in which the framework is intended to operate.157 The Brexit and Environment Group highlight that the environmental principles may be one area where cooperation will be needed, as different interpretations, for example of the precautionary principle, across borders could be problematic for trade.158 Professor Lee suggests that a UK wide policy approach would be preferable, with wider benefits:
More importantly, the different parts of the UK would have an interest in scrutinising each other’s performance, both to learn from each other, and as a form of peer review (as between the Member States of the EU).159
84.Common frameworks must be established via a dialogue between the four administrations.160 The IfG advised that the Government and devolved administrations needed to reach an agreement imminently.161 There are concerns that, at present, the process is not progressing fast enough, and that there is a lack of transparency. The Brexit and Environment Group’s report highlighted current problems with the mechanism for reaching agreement and concluded:
the debate on devolution has shed light on the dearth of co-ordination and co-operation mechanisms between the four nations. The body used to coordinate cross-national policies, the Joint Ministerial Council, meets irregularly (at the behest of the UK government) and is an opaque institution, which raises further questions about transparency and ability of stakeholders to influence the design of future environmental and agricultural common frameworks.162
85.In some areas, such as water quality, the Government has suggested that common frameworks will not be required. However, there are risks that without them there will be little to prevent a decline in the quality of transboundary natural assets, such as air, water and biodiversity should a future Government decide to reduce them. Dr Davis from UKELA, warned:
If one of the devolved nations or England decided not to have as high a quality of water standards. That would be a race to the bottom, particularly since some rivers cross borders and so on.163
86.The Government has suggested that common frameworks on water are not necessary, despite rivers and lakes straddling different administrations. The Secretary of State, said when questioned on this matter:
There is no evidence at the moment that any Administration within the UK wants to lead a race to the bottom. Indeed, the practical evidence and the co-operation that I have seen and that I have been taking part in is of a shared commitment to maintain high standards. What we want to have are UK-wide frameworks that respect that shared commitment, but also respect the proper autonomy of the devolved Administrations.164
87.Common frameworks must be established as soon as possible to ensure that the environment is not simply reliant on the good will of this or any future Government. We recommend that the Government engages with the devolved administrations to set out goals for common frameworks which incorporate the environmental principles and transboundary environmental standards.
Timing
88.The EU Withdrawal Act commits the Government to publish a draft bill by December 2018.165 This means the new oversight body and environmental principles will not be in place in time for the Government’s proposed exit day, 29th March 2019. Ruth Chambers told us that that there has been little transparency on the Government’s contingency plans, should there be no deal and no transition period:
The obvious concern is that the Government will not be able to meet their stated objective of ensuring that the governance gap is closed. If we crash out with no deal, what is the alternative, what contingency planning is being done by Government to ensure that there are temporary or interim governance and principles arrangements? What are they; when can we see them; when can we be consulted on them? That would be the immediate issue if we crash out in that sort of worst case scenario.166
89.We heard during the inquiry that the Committee on Climate Change (CCC) was initially set up as a ‘shadow body’. Nick Molho from the Aldersgate Group said this was a helpful precedent,167 and Baroness Brown, drawing on her experience from the creation of the CCC suggested a “number of months” may be needed to set up the new body.168 Sir Amyas Morse suggested that the Government should already be undertaking work on what he described as a “no-regrets basis”, where the activities would be of benefit, regardless of the full details of the transition period.169
90.When pressed on timing, the Secretary of State argued that it was important to get the proposals right and that the prospect of a transition agreement with the European Union meant that the urgency “abates slightly”.170 Following the Cabinet agreement at Chequers on 6 July 2018, the Secretary of State acknowledged that preparations would be needed to prevent a governance gap:
We are now […] stepping up all the preparations in the event of there not being that agreement … We are stepping up preparations within DEFRA and elsewhere in order to make sure that operationally and legislatively we are in a position to make sure that there is no—or at the very least a minimal air gap between.171
91.The Government has said it will not legislate until after the end of the Article 50 process. If there is no deal and no transitional period with the European Union then the United Kingdom will leave with no mechanism for enforcing environmental rights, targets and protections. This is an unthinkable prospect, and the Government must do everything to avoid it. We expect the Government to set out, in its response to this report, measures to meet its commitments on environment governance in the event of leaving the European Union without a deal.
Cross Departmental Buy-In
92.The evidence we heard highlighted the importance of support for the Plan across Government departments.172 The Plan is positioned as a Government document, though it does state that “DEFRA will act as ‘owner’ of the Plan on behalf of the Government”.173 To ensure the Plan remains a priority for ministerial agendas the WWT has argued that there is a need for a coordinating mechanism or a Cabinet Committee.174
93.There were concerns amongst the witnesses that at present, in practice, the Plan does not appear to be cross-governmental. UKELA suggested:
In contrast to Britain’s 1990 Environmental Strategy (“This Common Inheritance”), which was signed off by a broad range of Government departments, including Environment, Trade and Industry, Health, Education and Transport, the current Plan is DEFRA owned and led. While it mentions its “sister document” the Clean Growth Strategy, and some of the Plan’s actions point to collaboration with other Ministries such as MHCLG and Health, there is no overarching mechanism to check on delivery across government, such as the standing committee of Cabinet Ministers or a nominated Minister in each Department as envisaged in the 1990 White Paper.175
94.Baroness Brown described the difficulty the CCC and the Adaptation Sub-Committee (ASC) has had with trying to influence Government departments which are not sponsor departments. The ASC has “very good” influence and engagement with DEFRA, its sponsor department, and the CCC as a whole has “very good and strong links and relationships” with the Department for Business, Energy and Industrial Strategy on mitigation. However, where recommendations relate to the Ministry of Housing, Communities and Local Government or the Department of Transport it is “not as effective”.176 Lord Deben added that the CCC had “very little connection with the Department of Health”, which was unfortunate as he considered this to be crucially important.177
95.The witnesses agreed on the importance of securing cross-departmental support.178 Dr Benwell suggested that targets could support interdepartmental participation:
At that top level it is time for Government to reset things, maybe have a green-growth challenge where every policy in each Department is tested for its net nature benefits. That is the sort of thing that can make interdepartmental co-operation happen.179
96.The Secretary of State agreed that the document was Government-wide. However, he made no commitments on cross-Whitehall governance:
This is a Government document and it was produced with the help of other Government departments, from the Treasury through to the Department for Education, Health and MHCLG. The question of how we carry it forward and whether or not there will be, for example, a ministerial group in order to carry it forward, is ultimately a matter for the Prime Minister and the Chancellor of the Duchy of Lancaster. My view is that, by preference—but I would not want to bind our hands—it is better to work issue by issue bilaterally or multilaterally across Government in order to achieve things, rather than necessarily to have an inter-ministerial group or a Cabinet sub-committee.180
97.Subsequent events suggest the need for mechanisms to ensure cross-Whitehall buy-in. There have been widespread reports that hostility from other departments led to the Consultation being watered down.181 Indeed, in our own hearing as part of a joint inquiry into Improving Air Quality, it was apparent that the Treasury, Department for Communities and Local Government (as it then was) and Department for Transport, expressed some concerns about the Secretary of State’s proposals.182 For example, Andrew Jones MP, Exchequer Secretary to the Treasury said that instead of a new body, “the best way to hold Government to account is through Parliament”.183 The Government’s Clean Air Strategy has been criticised for a lack of measures relating to urban transport, whilst the Draft National Planning Policy Framework has been criticised by professionals for failing to properly embed the Plan’s ambitions in respect of net environmental gain.184 Recognising the difficulties of getting other Government departments to engage with long-term issues like environmental protection, we have previously recommended the creation of a Cabinet-level Minister for Sustainable Development with a cross-Whitehall remit for Sustainable Development.185
98.For the 25 Year Plan to be a truly-cross Government document it needs robust mechanisms to embed its ambitions across Whitehall. Legislative targets and oversight are crucial to this. Government publications since the Plan suggest departmental buy-in outside DEFRA is patchy at best. Yet we have heard in many of our inquiries how greater consideration of sustainability and the environment can help departments achieve their goals. For example, we have heard frequently from businesses that well-designed, credible, long-term regulation to protect the environment and mitigate climate change promotes investment and innovation. By embracing this agenda, the UK can be a world leader. By rejecting it we will fall behind. This is a reality that many in Whitehall appear not to have understood.
99.The Government’s proposals for oversight and accountability of the Plan need to ensure all Government departments - not just DEFRA - are held to account. The Government should set out in its response to this report how the commitments in the Plan will be factored into the strategic decision-making of non-DEFRA departments - particularly the Treasury, Department for Business, Energy and Industrial Strategy, Ministry of Communities, Housing and Local Government, Department for Transport and Cabinet Office. Duties to meet targets and apply principles should apply to the departments and public bodies which deliver change. The Government should launch a series of high-profile cross-Whitehall initiatives to raise awareness of environmental protection. For example, a ‘Green Growth challenge’ could be introduced where every policy in each Department is tested for its net nature benefits.
100.Our predecessor’s report on Sustainability in the Treasury made recommendations on how it could help Whitehall take decisions more sustainably. The Government’s response failed to engage with its recommendations and the Treasury ignored the Committee’s subsequent report asking them to look again. The Treasury should revisit its response to the report in the light of the commitments it has collectively signed up to in the 25 Year Plan.
77 The Future of the Natural Environment
81 Governance and Principles Consultation, p 33
85 The Environment Agency is a non-departmental public body, which is a regulator and delivery body rather than an oversight body or watchdog.
86 Q50; Q62 See also: Kevin Hyland OBE, Independent Anti-Slavery Commissioner (EGI0038); House of Lords Select Committee on the Natural Environment and Rural Communities Act 2006 The countryside at a crossroads: Is the Natural Environment and Rural Communities Act 2006 still fit for purpose? Report of Session 2017–19, HL Paper 99, 22 March 2017
88 DEFRA, Written Ministerial Statement on DEFRA’s arm’s length bodies, July 2010
89 House of Lords Select Committee on the Natural Environment and Rural Communities Act 2006, The countryside at a crossroads: Is the Natural Environment and Rural Communities Act 2006 still fit for purpose? Report of Session 2017–19, HL Paper 99, 22 March 2017
90 Environmental Audit Committee, First Report of Session 2000-1, Environmental Audit: The First Parliament, HC 67-I, para. 78
91 House of Lords Select Committee on the Natural Environment and Rural Communities Act 2006, The countryside at a crossroads: Is the Natural Environment and Rural Communities Act 2006 still fit for purpose? Report of Session 2017–19, HL Paper 99, 22 March 2017
92 Aldersgate Group (EGI0014); Chartered Institution of Water and Environmental Management (EGI0008); Chartered Institution of Wastes Management (ENP0109); ClientEarth (EGI0013)
94 The NAO has existed in its present form since 1982, although its governance was overhauled in 2011. The 2011 Budget Responsibility and National Audit Act put into statute that the NAO should also have a board with a majority of non-executives, including a non-executive chair. The board would be charged with setting the strategic direction for the NAO and supporting the C&AG. The C&AG was given a fixed term of ten years instead of the previous unlimited term.
98 Correspondence from Committee on Climate Change Chief Executive to Chair, 12 July 2018
101 Committee on Climate Change, About the Committee on Climate Change [Accessed 11/07/18]; Office for Budget Responsibility, Who we are? [Accessed 11/07/18]
104 Anglian Water Services (ENP0038); Aldersgate Group (EGI0014); Brexit and Environment (EGI0006); Chartered Institution of Water and Environmental Management (EGI0008); Chartered Institution of Wastes Management (EGI0026); Committee on Climate Change (EGI0020); Nicholas Crampton (ENP0005);Country Land & Business Association (CLA) (ENP0008); Trees and Design Action Group (TDAG) (ENP0015)
106 European Commission. Press Release: Air quality: Commission takes action to protect citizens from air pollution. 17 May 2018
107 European Commission. Press Release: Air quality: Commission takes action to protect citizens from air pollution. 17 May 2018
108 Governance and Principles Consultation
112 E.g. a failure to comply with judgments concerning the implementation of the Urban Waste Water Directive in Belgium recently resulted in a lump sum fine of €15,000,000 and daily penalties of €62,000. Marine Conservation Society (EGI0025)
116 E.g. Q3 [Nick Molho, Martin Nesbit, Ruth Chambers]; Q5; Chartered Institute of Ecology and Environmental Management (EGI0019); Country Land & Business Association (CLA) (EGI0021); ClientEarth (EGI0013); RSPB (EGI0029); see also Natural England (ENP0094) which argues that the oversight body needs to take on the responsibilities of the European Commission for environmental concerns.
120 Governance and Principles Consultation, p22
125 The European Commission states that it can only take up complaints about a breach of European Union law by authorities in an EU Member State (as opposed to possible breaches by private individuals). European Commission Enquiries and complaints about application of Union law. Accessed 04/07/18
126 Governance and Principles Consultation, p 23
129 Professor Maria Lee (EGI0010); Aldersgate Group (EGI0014); Environmental Industries Commission (EGI0033); Chartered Institution of Water and Environmental Management (EGI0008); ClientEarth (EGI0013); Wildlife and Countryside Link (EGI0024). See also House of Lords European Union Committee Brexit: environment and climate change 12th Report of Session 2016–17, HL Paper 109, February 2017
131 Correspondence from Local Government and Social Care Ombudsman and the Parliamentary and Health Service Ombudsman to Chair, 2 July 2018
138 For example, during our disposable packaging inquiry we heard about the advantages of there being a UK-wide deposit return scheme for plastic bottles. Environmental Audit Committee, Plastic Bottles: Turning Back the Plastic Tide, First Report of Session 2017–19, HC339
139 25 Year Plan, p 7
140 The UK government had initially proposed that those powers should transfer to directly to Westminster rather than to the devolved administrations
142 Institute for Government. 2017. Devolution after Brexit.
143 E.g Brexit and Environment (EGI0006); Chartered Institution of Wastes Management (EGI0026); Chartered Institution of Water and Environmental Management (EGI0008); IEMA - Institute of Environmental Management and Assessment (EGI0016); Institution of Environmental Sciences (ENP0100);WWF (EGI0018)
146 Institute for Government, Devolution after Brexit: Managing the Environment, Agriculture and Fisheries, 2018
150 Correspondence from Permanent Secretary of the Department for Agriculture, Environment and Rural Affairs, Northern Ireland to Chair, 25 June 2018
151 Correspondence from Cabinet Secretary for Environment, Climate Change and Land Reform in the Scottish Government to Chair, 25 June 2018
152 Correspondence from Cabinet Secretary for Environment, Climate Change and Land Reform in the Scottish Government to Chair, 25 June 2018
154 Environmental Audit Committee, EU and UK Environment Policy, Third Report of Session 2015–16, HC537
155 For example, The Future of the Natural Environment
156 Of these, the Cabinet Office identifies six of the 82, and 15 of the 24 as DEFRA responsibilities. Cabinet Office. Frameworks analysis. Breakdown of areas of EU law that intersect with devolved competence in Scotland, Wales and Northern Ireland, March 2018
157 Cabinet Office, Northern Ireland Office, Office of the Secretary of State for Scotland, Office of the Secretary State for Wales, Department for Exiting the European Union, The Rt Hon David Davis MP and The Rt Hon Damian Green MP, Joint Ministerial Committee Communiqué, 16 October 2017
160 The Future of the Natural Environment
161 Institute for Government, Devolution after Brexit: Managing the Environment, Agriculture and Fisheries, 2018
162 Burns, C., Gravey, V., and Jordan, A., 2018. UK Environmental Policy Post-Brexit: A Risk Analysis, a report for Friends of the Earth, Brexit and Environment, March 2018.
165 In the Consultation the Bill is referred to as the Environmental Principles and Governance Bill
172 Trees and Design Action Group (TDAG) (ENP0015); The Ramblers (ENP0041); Environmental Association for Universities and Colleges (ENP0052); National Parks England (ENP0056); National Trust (ENP0059); WWT (The Wildfowl & Wetlands Trust) (ENP0067) 7
181 For example, Daily Telegraph, 22 May 2018, Michael Gove blames ‘short-sighted’ Philip Hammond for Government’s Brexit defeat in Lords
182 Q 294 - 298, Evidence given to the Environmental Audit, Environment, Food and Rural Affairs, Health and Social Care and Transport Committees, Improving Air Quality inquiry
184 Chartered Institute of Ecology and Environmental Management supplementary written evidence, ENP0108
185 Environmental Audit Committee, Sustainable Development Goals in the UK, Ninth Report of Session 2016–17, HC596
Published: 24 July 2018