“A Bill to make provision about targets, plans and policies for improving the natural environment; for statements and reports about environmental protection; for the Office of Environmental Protection; about waste and resource efficiency; for the recall of products that fail to meet environmental standards; about water; about nature and biodiversity; for conservation covenants; about the regulation of chemicals; and for connected purposes.”
Part 1 of the Environment Bill on Environmental Governance is by some way the most important part of this major legislation. It is also, as currently drafted, the most disappointing. An EU framework that underpinned a high level of protection of the environment with Treaty provisions and in terms of Regulations and Directives with mandatory results, enforced by the European Commission and Court of Justice, is to be replaced by a mish-mash of discretionary targets, to be selected by the Secretary of State. As noted on the earlier version of the Bill, the Secretary of State would set the Policy applying Environment Principles (which are still, as drafted, subject to arbitrary and unjustified exceptions for the armed forces, and from any application to taxation and spending). The Secretary of State would control the appointment, and funding, of the Office for Environmental Protection charged with policing environmental laws. And if standards such as chemical standards for water proved hard to meet, the Secretary of State could lower or remove the standards. All of this was the subject of detailed and critical comment by the EFRA and EAC Committees of the House of Commons in separate reports in 2019, and almost nothing has been done to respond to those Committees’ criticisms in the Bill as reintroduced. The signs are that if the Welsh Government opts to follow the recommendations of its Stakeholder Task Group, many of these objections may be avoided in better Welsh legislation on governance than will apply in England.
It is undoubtedly the case that Brexit will in the end result in the UK having to apply its own environmental standards, which will ultimately be determined by the expression of the political will of the public, and how much they mind and expect to have their environment protected. In this transitional period from an EU legislative framework to one set within the UK, some NGOs favour having a “non-regression clause”, to underpin the standards being transferred with some form of statutory guarantee that they will not be unilaterally lowered. The Prime Minister agreed in principle to offer such a clause at one stage of the Brexit debates in 2019, but it remains to be seen if it is consistent with the current emphasis on the express right to diverge. An alternative approach might be to incorporate less discretion and a fuller expression of current agreed standards in the framework legislation. It is also the case that time and again, Brexit legislation comes up against the fact of devolution of responsibility for the environment, and the practical need for cooperation and ‘common frameworks” if the UK is to avoid four different and incompatible environmental standards. In the end, it does not much matter whether a standard is an EU or UK standard, as long as it represents the best outcome for the environment based on the best available science, but to get to that point and to have it enacted in national law will require a re-energised and activated environmental politics.
For further information on our reading of this and other Brexit environmental legislation, please contact William Wilson on +44(0)1225-730-407 or email <info@wyesideconsulting.com>