Environment Bill

WRITTEN EVIDENCE SUBMITTED BY COUNTRYSIDE ALLIANCE (EB14)

ENVIRONMENT BILL

Executive Summary

1. The Countryside Alliance is a membership-based organisation that works for everyone who loves the countryside and the rural way of life. We reflect the views and interests of 100,000 members and supporters who come from all walks of life and every part the United Kingdom.

2. The Countryside Alliance welcomes the Environment Bill and supports the Government’s aims and ambitions set out in the legislation.

3. Nevertheless, we believe that several areas the Bill could be substantially improved, and our position is set out below. We would like to see the Bill strengthened in terms of:

Ø The environmental principles.

Ø Environmental targets.

Ø Greater independence for the Office of Environmental Protection and stronger enforcement powers.

Environmental Principles

4. The principles currently underpinning our environmental law, whether enshrined in EU law or those international treaties to which the UK is a signatory should all be maintained following the end of the current transition period. As such we welcome the principles included in the Bill.

5. However, despite the environmental principles being on the face of the Bill their scope and application are largely undefined in the Bill relying instead on a subsequent policy statement on environmental principles to define the principles and the policies to which the principles are to apply. As such we are concerned that in practice the environmental principles and policies may be defined too narrowly and therefore be limited in their overall effectiveness and be difficult to enforce.

6. The approach taken in this Bill could not be in starker contrast to that in other legislation which puts into law a number of principles and creates a definitive duty on public authorities to apply them. For example, the Well-being of Future Generations (Wales) Act 2015 clearly defines sustainable development (s.2), creates a duty (s.3) and then sets out and describes each of the goals. We would suggest that this approach is preferable to the current draft legislation. Indeed, when scrutinising the previous Environment Bill, the Environmental Audit Committee Report of 18 July 2018, notes that "The original policy statement should be included as a schedule to the Bill itself – allowing it to be scrutinised fully by Parliament. Substantive amendments to the statements should only be made following a debate on the floor of the House." At the very least the process of producing the policy statement must require full and public consultation and should require parliamentary approval, as should subsequent changes.

7. Furthermore, the Bill does not include principles that would benefit the environment. Principles that we believe should be included are:

Ø Innovation Principle: It would encourage a positive policymaking framework and ensure that policy makers are able to use innovation as a way of protecting and improving the health of the environment.

Ø Non-Regression Principle: Essential if we are to leave the environment in a better place than we found it and this should, along with the other principles, apply across all levels of government.

Ø Net-Gain Principle: One of the key objectives of the 25 Year Environment Plan, the first EIP, is to embed an ‘environmental net gain’ principle which is why it is important for it to be included in the environmental principles set out in relation to the new governance body.

Ø Appropriate Scale Principle: Many of the environmental challenges are not limited to particular places and therefore should be managed at the most appropriate scale. This would ensure a proper landscape-scale approach was taken; recognising the interconnectedness of areas such as water catchment areas, wildlife corridors and the marine environment where an ecosystem-based approach is essential.

8. The environmental principles policy statement should not only outline the principles, and set out clearly their meaning and application, but should also be publicly consulted on and scrutinised by Parliament.

Environmental Targets

9. We are concerned that the Government has given itself till 2037 to meet any future legally binding targets to improve air and water quality, tackle plastic pollution, and restore nature.

10. The Environment Bill states that targets for these four priority areas must be published by 31 October 2022. But the date for actually meeting these targets must then be set "no less than 15 years after the date on which the target is initially set" - giving the Government until 2037 at the earliest to meet the targets. Interim targets will be set, but these would not be set out until 2022, and these will not be legally binding, according to the Bill. This will make enforcement impossible for many years and the Government cannot be held to account in law.

Office of Environmental Protection (OEP)

11. Chapter 2 and Schedule 1 make provision for the creation of the OEP, which will be responsible for monitoring and reporting on environmental improvement plans in England.

12. The Countryside Alliance does not believe that the proposed constitution of the Office for Environmental Protection (OEP)  is sufficiently independent to scrutinise and hold the Government to account. Much has been made of its independence from the Government. However, the reality, as set out in the Bill, is very different. The Secretary of State has the power to appoint the non-executive members of the OEP, including the Chair who in turn appoints the CEO with the statutory obligation to consult the Secretary of State. The Secretary of State decides the terms on which non-executive members should be appointed, only having to consult the Chair (who is appointed by the Secretary of State in the first place). Non-executive members, whom the Secretary of State must ensure, so far as practicable, are greater in number than executive members, can be removed by notice given by the Secretary of State on grounds, amongst others, that "in the opinion of the Secretary they are unable or unfit to carry out the member’s functions".

13. The OEP is open to being controlled and manipulated by the Government. Looking at other Non-departmental Government Bodies (NDGBs), which are supposed to be independent, illustrates the lack of real independence these bodies enjoy. For example, the Parole Board had its Chair forced out in a clash with the Government of the day. Its constitution is in stark contrast to the real independence enjoyed by a body like the Press Recognition Panel, established as it is by Royal Charter, without the need for ministerial approval of appointments. It should also be noted that despite the Digital, Culture, Media and Sport Select Committee’s less than favourable report following the proposed new Chair of the Charity Commission and indicating that the Committee was unanimous that they could not support the Government’s candidate, the Government was free to ignore the report and their candidate was appointed regardless. The Select Committee was also concerned by the lack of transparency in the process. The letter sent to the Secretary of State is instructive of why there are grounds for concern about the proposed constitution of the OEP and the role of the Secretary of State in the appointments process.

14. Concern about the OEP’s independence is not limited to the appointment and dismissal of its members, but also to its financial independence. The Bill simply requires the Secretary of State to pay such sums as they consider "are reasonably sufficient to enable the OEP to carry out its functions". The saying "he who pays the piper calls the tune" comes to mind. We would draw attention to the Environmental Audit Select Committee’s Report in the last Parliament into the Government’s 25 Year Plan for the Environment which proposed a body called The Environmental Enforcement and Audit Office with a role equivalent to the proposed OEP. However, unlike the OEP the Committee recommended that the setting of its budget, scrutiny of its performance and oversight of its governance should be by a "statutory body of parliamentarians, modelled on the Public Accounts Commission." While we offer no comment as to whether this is the best model, we do believe that whatever model is adopted it must give the OEP an independence from Government which is largely lacking in the current proposals in the Bill.

15. What is proposed for the OEP does not replicate the independence resulting from the arrangements under existing EU law, with the Commission and European Court of Justice, it does not even come close to equivalence. Far from being "world leading" as the Government would claim, the regulatory regime in the Bill falls short of that ambition.

16. Without this independence being established in law the provision in Schedule 1, paragraph 7 that the OEP "may do anything …it thinks appropriate for the purposes of, or in connection with, its functions" does not as the Explanatory Notes state, provide "the OEP with sufficient independence from Government when carrying out its functions".

17. The Countryside Alliance welcomes the fact that the OEP is required to monitor the implementation of environmental law and may report on any matter related to the implementation of environmental law. It is also welcome that any reports must be published and also laid before Parliament.

18. The Countryside Alliance welcomes the fact that the Bill reflects the Government’s acceptance that the OEP must have the power to take public authorities, including the Government to court, where public authority is defined as "any person carrying out any function of a public nature".

19. However, we would note with concern that the OEP may carry out an investigation if it receives a complaint under clause that a public body has failed to comply with environmental law, and "the failure is serious". There is no indication as to what is to be considered "serious". Given the various enforcement powers open to them and that action must be proportionate there is no necessity to restrict the OEP to investigating only "serious" failures.

20. The inclusion of the power for the OEP to apply to the Upper Tribunal for an "environmental review" where the OEP has given a decision notice to a public authority, is a useful addition to the OEPs powers, not found in the earlier draft legislation. It is a useful alternative to judicial review and may allow for some investigation of the facts in a way which judicial review does not usually allow. However, the Government has specifically given the Tribunal the power to grant any remedy available to a court on a judicial review, except damages.

21. The Bill is an improvement on the draft version in terms of enforcement but, despite the Government’s repeated assurances that the new oversight body will have powers that are at least equivalent to those enjoyed by the EU institutions in enforcing environmental law, the Bill does not empower the OEP or Upper Tribunal to issue fines. Under the current EU arrangements, the power to issue fines has proved remarkably effective in bringing about compliance where a breach of environmental law has been established, and in deterring governments from ignoring or breaching environmental law.

22. The Bill sets out an enforcement process in stages involving Information Notices, Decision and Linked Notices and then either Environmental Review by the Upper Tribunal or Judicial or Statutory Review. However, access to Judicial Review by the OEP seems limited by clause 34(2). Further clarity as to the impact of this restriction would be welcome, although we recognise that the restriction must be understood in the context of the new provisions for recourse to the Upper Tribunal as the ordinary route for enforcement.

23. We welcome this staged approach but repeat that both the OEP and the Upper Tribunal and the courts must be able to issue fines. Fines by the OEP may need to be limited to a form of fixed penalties, but this penalty should be available to the Tribunal and courts. We believe that any fines resulting from enforcement action should, as the Environmental Audit Committee has suggested, "be ring-fenced and used for an environmental fund for remediation works" overseen by the OEP.

24. We would also draw attention to the Law Society’s comments in response to the consultation before the draft Bill was published. The Society noted that the court must be able to "determine matters in a fair , equitable, timely and cost-efficient manner" and that the "possible orders the court may make should reflect the sanctions available under s.31(1) of the Senior Courts Act 1981 i.e. a mandatory, prohibiting or quashing order, a declaration or an injunction and the options to impose a fines, award damages if appropriate…the scope and remit of the new body should not be limited by restricting access to the courts and or limiting the scope of the judicial remedy available".

25. Throughout the consultation process leading to the Environment Bill a wide variety of organisations have expressed concern at the shortcomings of the current judicial review process. The introduction of the tribunal stage may address some of these concerns, but judicial review will remain an import route for enforcement and as it currently operates is problematic in terms of enforcing environmental law.

26. Whether it is the OEP, a private individual or an NGO, bringing a judicial review the fact remains that judicial review looks largely at process rather than the merits of a decision, and the remedies under judicial review are less dissuasive than those under the existing EU procedure. It is also a costly process. In contrast the current EU process has minimal costs, dissuasive remedies, is not based on an adversarial process and works on the basis of the proportionality principle. It also looks at the merits of a decision rather than simply process i.e. was the decision lawfully made. If judicial review is to remain an important means of enforcement, then the use and operation of the judicial review process in this area needs to be reconsidered, incorporating some of the distinctive features of the Court of Justice of the European Union (CJEU). The Aarhus Convention Art. 9(4) states that procedures for environmental cases must be "fair, equitable, timely and not prohibitively expensive".

27. Currently the domestic courts can refer to the CJEU for a preliminary interpretive ruling where an interpretation or validity of an EU law is in question. It is not clear whether a similar judicial mechanism will exist after Brexit and whether the lower courts, OEP or others can seek clarity of interpretation of the law to assist in their enforcement function. Whether such a request would be to the Supreme Court or some other body, some thought should be given to replicating this helpful feature of the current EU process.

March 2020