Chapter 2: Brexit and the natural environment
53.Throughout the course of our inquiry it was clear that the context provided by EU law had been a critical factor in shaping UK structures of environmental monitoring, planning and accountability. Membership of the EU has helped to define our environmental policies, priorities and standards—although it is important to emphasise that the UK has been a leader in setting standards across a wide range of not only European but global environmental and animal welfare policy areas.
54.Much relevant European law has been transcribed into UK domestic law, and the EU (Withdrawal) Bill, currently before Parliament, seeks to ensure that the law remains essentially the same on the day after Brexit as it was on the day before. Nonetheless, departure from the EU will significantly alter the context in which organisations created by the NERC Act—particularly Natural England—are carrying out their work. Additionally, departure from the EU could provide new opportunities to develop better approaches to land management and food production that support the natural environment.
The accountability and enforcement capacity of the EU
55.At present, the structures of the EU provide a mechanism for enforcement of standards and requirements set out in EU law. The European Commission monitors member state compliance with, and implementation of, commitments made under EU law. In circumstances where a member state fails to comply with such laws, the Commission can use enforcement powers including formal notices and reasoned opinions; ultimately, a state can be taken before the Court of Justice of the European Union (CJEU), with the possibility of sanctions, including large fines, being applied in the event of any breaches. The Commission is able to address issues raised in complaints from individual citizens or non-governmental organisations (NGOs), providing an informal route for public access to enforcement.
56.This structure of accountability and enforcement has been of particular importance in the environmental context. We were told of a recent case that had been raised with the Commission regarding “the damaging practice of burning blanket bogs … without the appropriate assessment required by the Habitats Directive”.43 As a result, the European Commission is taking steps to require appropriate action from UK authorities to address this issue.44
57.Following the withdrawal of the UK from the EU, however, this avenue for monitoring, compliance, and addressing issues raised by environmental NGOs will no longer be available. This was raised as a consistent issue across the evidence we heard. The British Ecological Society told us:
“While the EU (Withdrawal) Bill may transfer the letter of the law, the loss of the supervisory, enforcement and scrutiny functions of the European Commission and the Court of Justice of the European Union, without adequate replacement by domestic alternatives, risks undermining the effectiveness of legislation and therefore maintenance, let alone improvement of environmental standards”.45
In a similar vein, the Association of Local Government Ecologists (ALGE) told us that new structures and legislation must include sufficient provision for enforcement and scrutiny, as currently provided by the Commission and CJEU.46 Wildlife and Countryside Link stated that the loss of the scrutiny and enforcement role performed by the CJEU risked undermining the maintenance of good environmental standards in the UK, going on to argue that: “The structures established by the NERC Act were created within the context of the UK’s membership [of the EU]. These structures are not sufficient to secure the necessary environmental standards post-Brexit”.47
58.Previously, the Government had suggested that Parliamentary scrutiny and the judicial review function would provide sufficient mechanisms for civil society to challenge the application of environmental legislation post-Brexit. This view was offered to us when we heard from Defra officials in July 2017.48 Witnesses, however, argued that this assessment was flawed; we were told that “this misunderstands both the breadth of functions currently performed by the EU institutions and the limitations of judicial review”.49
59.Accordingly, we were repeatedly told50 that the accountability functions of EU institutions needed to be replicated through new UK institutions, in order to avoid a “governance gap”.51
A new environmental body?
60.During the course of our inquiry thinking within Government on this issue evolved and, in November 2017, the Secretary of State for Environment, Food and Rural Affairs told the House of Commons Environmental Audit Committee that:
“Outside the European Union the question is what replaces the Commission, how do we have the ECJ as a role replicated. This is an absolutely important question. My thinking is that we should consult on what type of body it is believed would be appropriate to replace the role that the Commission and the Court have played … The need for a body or bodies has been clearly identified … It is right we should take some time to reflect on … what the right balance is between ensuring people continue to have recourse to the courts through judicial review … but also recognising that you may well need an agency, a body, a commission that has the power potentially to fine or otherwise hold Government to account and certainly to hold public bodies other than Government to account”.52
The 25-year environment plan sets out the Government’s intention to consult on the precise make-up of the new body.53
61.Our witnesses were clear and consistent in arguing that any such new body needed to enjoy sufficient independence from Government54 and should be clearly separate from organisations—including NE and the Environment Agency—whose functions and work might fall within its oversight.55 The requirement was for a new, independent body to replicate some of the environmental protection functions currently carried out by the European Commission.
62.David Baldock of the Institute for European Environmental Policy (IEEP) told us:
“The body’s role would … be to publish reports, to review legislation, to pursue complaints and to oversee free and accessible mechanisms for civil society, maintaining the avenues that civil society has, both as individuals and as groups, to play a role in implementation and to have an avenue for complaints in securing environmental justice. The body would be able to turn to the courts if it felt that was necessary”.56
63.Stephen Trotter, of the Wildlife Trusts, emphasised the need for independence:
“From our perspective, an independent, impartial, adequately-resourced monitoring and enforcement authority is needed to undertake this role. We must not forget that while the European Commission has not been perfect, it has been vital in safeguarding some European standards and approaches that we have in the UK”.57
64.Independence from Government will be vital to the successful operation of such a body. Inevitably, however, the running costs of such an organisation would need to be met in whole or part by the Government, posing a potential risk to this independence. The Secretary of State told us that he expected the funding of the new body to be provided by Defra, but that it would be responsible to Parliament.58 Mr Gove also suggested that one potential model to follow would be the Committee on Climate Change (CCC), and that the new body would “be able to point out when, in the formulation or implementation of policy, Government was not living up to the environmental principles and ambitions that we had set ourselves and that Parliament had agreed”.59
65.The CCC was established by an Act of Parliament60 and with a statutory remit; it is funded by Defra, the Department for Business, Energy and Industrial Strategy, and the governments of Northern Ireland, Scotland and Wales. The CCC is accountable to Parliament.
66.We too believe that this could be a useful model to follow and note—importantly—that the diffuse funding model of the CCC helps to ensure a degree of independence from Government, while also providing a degree of resilience against future budget reductions. The CCC is a high-level body, with resources that are significant but not lavish; it has a staff of around 30. We were told that it enjoys “credibility … gravitas and analytical detachment”.61 These are qualities that we would hope to see replicated in the new environmental protection body.
67.The departure of the United Kingdom from the European Union will result in a governance gap for environmental protection in the UK. Potentially, this could diminish the extent to which the Government can be held accountable for its environmental promises and commitments.
68.We welcome, therefore, the Government’s decision to create a new environmental body to hold both it and other public bodies to account, and the anticipated consultation on filling the ‘governance gap’. We recommend that the new body should be independent, accountable to Parliament, financed by more than one Government department and tasked with providing environmental oversight and scrutiny.
69.The new body must be able to deal with issues raised by individuals in complaints, and should have the power and capacity to take the Government and other public bodies to court when appropriate to do so. Where as a result of such actions, the courts determine faults or breaches to have occurred, appropriate sanctions—including but not limited to fines—should be available.
Environmental monitoring and reporting following Brexit
70.European law imposes biodiversity and habitat monitoring and reporting obligations on member states. Article 12 of the EU Birds Directive, for example, requires member states to report on implementation of the Directive, while Article 17 of the Habitats Directive sets out a similar reporting requirement. The reporting format set out for the Habitats Directive requires a separate analysis for each species and each habitat in each “biogeographic region”; the latest UK report covers some 202 habitats and species.62
71.We were told that the Habitats Directive—in conjunction with other international agreements—had “set the context for biodiversity conservation” and had “been welcomed as being realistic, rigorous and evidence based”.63 The “seamless transmission” of provisions from the Habitats Directive and the Birds Directive into British law was highlighted as being of particular importance for post-Brexit environmental protection.64
72.While the substantive provisions of both of these directives are likely to be transposed into UK law as a result of the passage of the EU (Withdrawal) Bill, the requirement to report to EU bodies will no longer apply following Brexit. Guy Smith, Vice-President of the National Farmers’ Union (NFU), noted that the effect of the Bill would be to cut and paste European directives into British law, but that, in the absence of the European institutions tasked with overseeing such directives, “operational issues” could result.65
73.Reporting requirements—and European environmental legislation more generally—have been an important factor in helping to shape the priorities of Natural England and ensuring a continued focus on biodiversity, habitat and species protection.66 In the absence of continued European reporting requirements, therefore, there is the potential for the emphasis placed on biodiversity monitoring, recording and reporting to diminish over time.
74.One possible approach to addressing this situation would be to alter the legislative remit of Natural England, in order to insert additional responsibilities for the monitoring and provision of credible data and evidence on biodiversity. This possibility was suggested to us in evidence.67
75.However, the creation of the new independent environmental body, tasked with providing oversight and accountability on the actions and policies of the Government as regards the environment, offers an additional possibility. The IEEP told us that:
“Should there be a new body of the kind that we talked about … it should have a remit to try to ensure that there is adequate monitoring, reporting and transparency. Indeed, it would be desirable to see more transparency and engagement than we have at the moment … As long as the reporting and transparency can ensure that everyone is fully informed so that no one goes off in diverse and undesirable directions, a new body could help to oversee that”.68
76.The creation of a new independent environmental body provides an opportunity to shape, define and enhance new reporting requirements for biodiversity. We believe that the remit of the new body should include scrutiny of environmental and biodiversity monitoring reporting undertaken by the Government, Natural England and other relevant bodies. This would help to address some of the issues raised by the loss of the provisions applied within the Habitats and Birds directives.
77.The Habitats Directive and the Birds Directive require EU member states to report on the measures they have taken to implement the provisions of the Directive, including on the conservation status of habitats and species. Although the fine detail of policies may be subject to future change it will be important, following Brexit, to retain similar reporting requirements on the conservation status of protected species and habitats.
78.We therefore recommend that Defra and its agencies be required to report on the implementation of their legal obligations in respect of nature conservation, including specific requirements with respect to the conservation status of protected species and habitats. These reports must be made to the new environmental body proposed by the Government, which should then scrutinise the reports and publish informed commentary, analysis, and recommendations for action by the Government.
79.The Government’s stated ambition to move towards a ‘net environmental gain’ approach within the planning system could, over the longer-term, offer wider benefits for the protected species and habitats, and biodiversity more generally. The approach set out in the 25-year plan would also require additional monitoring and reporting tools. We consider the net gain approach further in the next chapter.
44 Ibid.
50 See evidence from CLA (NER0026), Cotswold District Council (NER0056), RSPB (NER0051), Q 55 (Guy Smith) and Q 66 (Prof Dieter Helm CBE)
52 Oral evidence taken before the House of Commons Environmental Audit Committee, 1 November 2017 (Session 2017–19), QQ 1-2 (Michael Gove MP)
53 HM Government, A Green Future: Our 25 Year Plan to Improve the Environment (11 January 2018)
62 Joint Nature Conservation Committee, UK General Implementation Report (2013): http://jncc.defra.gov.uk/pdf/A17_2013_Gen_Imp%20_Rpt.pdf [accessed 13 March 2018]