Pre-legislative scrutiny of the Draft Environment (Principles and Governance) Bill Contents

Conclusions and recommendations

Introduction

1.The Environment Bill presents the Government with an opportunity to establish a new and improved framework for the future of environmental governance. We have welcomed the opportunity to conduct pre-legislative scrutiny on the draft Environment (Principles and Governance) Bill. However, given the importance of the Environment Bill for generations to come, it is disappointing that we have not been granted the opportunity to look at the full Bill before its publication in the next parliamentary session. Without knowledge of the final contents of the Bill it has been a challenge to fully scrutinise the draft clauses, and this has frustratingly limited the scope of our inquiry. We recommend that the Government should leave enough time between introduction of the Bill and Second Reading to allow the Committee to conduct proper scrutiny of the remaining clauses in the Bill in order to inform the House’s consideration of it. (Paragraph 10)

The policy statement on environmental principles

2.It is essential that environmental principles continue to guide environmental policy making and legislation after the UK’s departure from the European Union. We therefore support the list of principles included in Clause 2 of the draft Bill. However, the Government has not included within the list of principles a clear overarching objective for the UK’s future environmental governance. Notably, the Government has not carried across the objective of “a high level of protection for the environment” as currently stated in Art 191(2) of the Treaty on the Functioning of the European Union. This is a surprising omission given the Secretary of State’s clear commitment to improving the state of the environment. (Paragraph 24)

3.We are also concerned that the Bill turns what are currently legal provisions for environmental principles into a policy statement which will be much weaker and easier to revise. In reducing the legal status of the principles, the draft Bill therefore marks a significant regression on the current levels of protection guaranteed under the European Union treaties. (Paragraph 25)

4.We recommend that Clauses 1–4 of the draft Bill are redrafted to provide a stronger legal commitment to the protection of the environment. An overarching objective to ensure a “high level of protection for the environment”, as is currently outlined in the Treaty on the Functioning of the European Union, should be inserted into the draft Bill to underpin the other environmental principles. The interpretation and application of the environmental principles in Clause 2 should not be left to just a policy statement but should be further outlined on the face of the Bill. Given the importance it has placed on the policy statement, the Government should also clarify and reinforce in the draft Bill the timescales and process for drafting, consulting on, publishing and reviewing the statement. This is essential for effective public and parliamentary scrutiny. (Paragraph 26)

5.The draft Bill requires Ministers to merely “have regard to” environmental principles. This places too weak a duty on the Government and risks a possible regression on current standards of environmental protection. The duty to “have regard to” is also fundamentally undermined by Clause 4(2) which gives far too much discretion for Ministers to not act to protect the environment. (Paragraph 34)

6.The Government should amend Clause 4(1) to replace the duty to “have regard to” environmental principles with the stronger wording of “act in accordance with”. Clause 4(2) should also be redrafted to reduce the level of discretion for Ministers to not act to protect the environment. (Paragraph 35)

7.The principles should not just apply to Ministers of the Crown and policy decisions but to all public authorities and all relevant administrative decisions, as is currently the case. The Bill should be amended so that the effect of the policy statement extends to all public authorities when making any decisions. There should also be an obligation on all public authorities for written confirmation that the principles have been applied in their decisions. (Paragraph 36)

8.We are very concerned by the exemptions to the policy statement listed in Clause 1(6). The exemptions relating to defence and general taxation are too broad and could lead to significant gaps in environmental protection within the Ministry of Defence and HM Treasury. The delegated power also offers a “get out of jail free card” for a future Secretary of State to disapply environmental principles from any particular policy area. (Paragraph 42)

9.Clause 1(6) should be redrafted to ensure that any exemptions necessary are more narrowly defined, with their implications in practice clarified in the explanatory notes. The Government should seek to substantially minimise the scope of the exemptions and to reduce their generality of application. Clause 1(6)(c) should be revised to ensure that the Secretary of State cannot exclude further policy areas from the scope of the Policy Statement without public consultation and notifying the relevant parliamentary committees. (Paragraph 43)

The Office for Environmental Protection (OEP)

10.We recognise that it is not possible for the UK to replicate the existing model of environmental governance as part of the European Union. However, the Government has made clear its commitment to the same outcomes. In setting up the new Office for Environmental Protection, it is therefore essential that every step is taken to ensure the Office for Environmental Protection is as independent from the Government as possible, to give the public confidence that the Government will be properly held to account on its duty to protect the environment. (Paragraph 46)

11.The independence of the Chair of the Office for Environmental Protection will be crucial to its ability to hold the Government to account. It is therefore inappropriate for the Chair and the other non-executive members of the board to be appointed solely by the Secretary of State. (Paragraph 50)

12.The Government must revise the appointments process to ensure greater independence and transparency. We recommend that the process should be modelled on the equivalent process for the appointment of the Chair of the Budget Responsibility Council at the Office for Budgetary Responsibility. The Chair and all non-executive members of the board should be appointed by the Secretary of State only with the consent of the Environment, Food and Rural Affairs Select Committee. The Chair should be subject to a pre-appointment hearing prior to the Committee consenting to her appointment. Similarly, a non-executive member should not be dismissed from the Board of the OEP without the consent of the Environment, Food and Rural Affairs Select Committee. (Paragraph 51)

13.A history of sustained budget cuts to Defra’s arm’s length bodies does not fill us with confidence that the current funding provisions for the Office for Environmental Protection in the draft Bill are sufficient. Given the importance of the OEP’s independence from Government it should have additional budgetary protections than is customary for Non-Departmental Public Bodies. (Paragraph 58)

14.The Government should commit to providing a multi-annual budgetary framework for the Office for Environmental Protection in the Bill. This commitment would help to ensure the Office for Environmental Protection’s independence from Government and is consistent with best practice as seen with the Office for Budgetary Responsibility. Rather than grant-in-aid, the Office for Environmental Protection should also have its own estimate which should be negotiated directly with HM Treasury, and voted on by Parliament in the yearly Supply and Appropriation (Main Estimates) Bill. (Paragraph 59)

15.Under the current proposals we are not convinced that the Office for Environmental Protection will be sufficiently independent of Government or accountable to Parliament. The Office for Environmental Protection must not be seen to be just another arm’s length public body attached to Defra, given its elevated watchdog status. We also do not consider that the Office for Environmental Protection will have anything close to the same level of independence as currently exercised by the European Commission. (Paragraph 67)

16.To achieve equivalence with the existing arrangements as members of the European Union, the Bill should be redrafted to ensure greater independence for the Office for Environmental Protection. The Office for Environmental Protection must not be solely a body of Government. The Government should revisit the legal status of the Office for Environmental Protection to provide greater independence than a standard Non-Departmental Public Body allows. Lack of precedent should not be a barrier to establishing a constitutionally innovative model, especially given the Secretary of State’s ambition for the watchdog to be “world leading”. (Paragraph 68)

The functions of the Office for Environmental Protection

17.The purpose of the Office for Environmental Protection is to replace the governance functions of the European Commission and hold public authorities to account. The Government should avoid unnecessary duplication with existing domestic regulators who already enforce compliance by private companies, NGOs or landowners. The definition of “public authorities” in Clause 17(3) should be clarified, with a specific exclusion added for statutory undertakers. (Paragraph 75)

18.The OEP should have the power to initiate investigations into a suspected breach of environmental law and should not have to wait for a complaint to have been lodged to do so. It is important that members of the public are clear about the specific role of the OEP, and the types of complaints it is intended to deal with. The Bill should be redrafted to ensure the OEP has the power to proactively carry out investigations into a serious failure to comply with environmental law on its own initiative, rather than just in response to a complaint. The discretionary and strategic nature of the OEP’s enforcement provisions should be made clearer in the Bill to ensure that it does not become inundated with complaints relating to local matters. The word “serious” in relation to a breach of environmental law should be clarified on the face of the Bill. (Paragraph 79)

19.The Office for Environmental Protection needs to have the right balance of investigatory and enforcement powers, with sufficient legal teeth to ensure that compliance with environmental law is achieved without a majority of cases ending up in the courts. We welcome the OEP’s powers to issue information and decision notices but are concerned that at present these notices will not have sufficient legal force to compel action. (Paragraph 93)

20.The OEP’s enforcement powers are entirely reliant on judicial review, which largely focusses on process and not the substance of a decision. We therefore do not consider that judicial review will be an appropriate or effective tool in all environmental cases. The OEP will need a more bespoke enforcement procedure to ensure wider compliance with environmental law. The Bill needs to incorporate other enforcement routes and appropriate tools to resolve environmental cases before they are taken to the High Court. (Paragraph 94)

21.Given the weaknesses of the traditional judicial review process for dealing with environmental cases, an enhanced enforcement procedure should be established for the OEP. Clause 25 should be redrafted to ensure that there is a legislative requirement on the court to take account of the issued decision notice as part of the review process. (Paragraph 95)

22.The OEP should be empowered to issue emergency and interim measures in urgent cases and to intervene in other legal proceedings relating to its purposes. These additional powers are essential given the potentially irreversible nature of environmental harm. (Paragraph 96)

23.Defra should also continue to engage with legal experts on how best to incorporate the First Tier (Environmental) Tribunal into the enforcement process. An appropriate role for the Tribunal would be to confirm any decision notices issued by the OEP. The Tribunal could have a role in deciding whether there has been a breach of environmental law or whether the steps proposed to deal with the situation are adequate or reasonable. (Paragraph 97)

24.Given the structural differences between the European Commission and the proposed OEP, we agree that it is inappropriate to simply try to replicate the Commission’s current enforcement powers. While fines have proven to be a powerful tool for compliance within the context of the Commission, we do not believe they are a suitable mechanism within a domestic context as they could reduce already depleted public authority budgets. However, in the absence of fines, we believe there needs to be an appropriate enforcement alternative. The watchdog will need sharper teeth than it is currently given. In the absence of the power to fine, additional tools need to be given to the Office for Environmental Protection enforcement powers to ensure compliance with environmental law. Appropriate mechanisms to ensure greater personal accountability for failings will help to sharpen the watchdog’s teeth. (Paragraph 103)

25.The advisory and scrutiny functions of the Office for Environmental Protection are welcome but need to be clarified and revised. The OEP’s primary function must be to hold the Government to account on its obligations to protect the environment. It is therefore important that its wider scrutiny and advisory functions do not compromise its ability to enforce, either by limiting its independence or by restricting its resources. To avoid any tension between the OEP’s two roles as an advisory body and a watchdog, Clause 16 should be redrafted so that the OEP only has to offer advice to Ministers at its own discretion. (Paragraph 111)

26.The Office for Environmental Protection (OEP) should act as a high-level strategic body. It should advise on matters relating to environmental law and the implementation of the Environmental improvement plans. The OEP must not take over well-established monitoring functions undertaken by other specialist statutory bodies. To avoid unnecessary and costly duplication of technical expertise the OEP must set out in its strategy how its wider scrutiny and advisory roles will relate to and impact upon the other statutory bodies within the ambit of Defra. (Paragraph 112)

27.The definitions in the draft Bill are currently a source of confusion. We therefore welcome the Minister’s commitment to review Clauses 30 and 31 and to rewrite the relevant explanatory notes. The definitions of natural environment and environmental law are of central importance as they will guide future Secretaries of State in their creation of Environmental Improvement Plans and frame the remit in which the new Office for Environmental Protection will operate. They must therefore cover all the necessary aspects of environmental law and the wider environment. (Paragraph 122)

28.The definitions in Clauses 30 and 31 need to be expanded in scope and clarified in application and interpretation. We recommend that the Bill be redrafted to provide for a more holistic definition of the environment, with explicit reference made to the historic environment. Given the UK’s departure from the wider framework of EU environmental law, international law should be included within the definition of environmental law, so that the OEP can factor international law into its enforcement and wider advisory functions. The Bill should also be redrafted to ensure that the OEP has the power to review all aspects of the Environmental Improvement Plans in its monitoring role. (Paragraph 123)

29.There must not be a governance gap in law in relation to climate change when the UK leaves the European Union. Given the lack of enforcement provision for the Committee on Climate Change, the Office for Environmental Protection should play a role in enforcing the Government’s targets and objectives relating to climate change. However, in undertaking this function, the OEP must not unnecessarily and negatively encroach upon the well-established advisory functions of the Committee on Climate Change. (Paragraph 129)

30.The Government should make clear via memorandums of understanding published alongside the Bill, how the Committee on Climate Change intends to co-operate with the Office for Environmental Protection. As the Climate Change Committee has no enforcement role, Clause 31 of the Bill should be redrafted to include Climate Change within the enforcement remit of the OEP. A duty should be placed on the OEP to consult the Committee on Climate Change before conducting any enforcement action in this area. (Paragraph 130)

31.Although environmental policy is a devolved matter, it is essential that the UK Government and the Devolved Administrations work together to protect the environment after the UK leaves the European Union. National boundaries are irrelevant in the context of environmental challenges such as air pollution or climate change. Common frameworks for governance after the UK’s exit from the European Union should be underpinned by common standards and principles to avoid gaps in the implementation of environmental policy across the UK. (Paragraph 138)

32.We would welcome the extension of the Office for Environmental Protection to become a UK wide body but recognise that this decision sits within the power of the Devolved Administrations. The Bill should be redrafted so that, subject to the creation of separate bodies in the Devolved Administrations, the UK Government can establish the necessary mechanisms for cooperation and the sharing of data. Given the rushed timescales for the creation of the OEP, the Government should commit to a future review of the provisions for environmental governance across the UK within five years. (Paragraph 139)





Published: 30 April 2019