In Part 1 of this two part series of articles, we look at the background to the continued delays in the progress of the Environment Bill and what needs to be done to improve its governance provisions.
In the next article, in Part 2, we will look at the efforts of two House of Commons Select Committee Chairs, Philip Dunne MP and Neil Parish MP to galvanise support for improvements to river quality and air quality respectively, and the implications of that for the Environment Bill.
The law’s delays
On 26th January 2021, after 22 sittings of the Public Bill Committee between 10 March and 26 November 2020, with a further delay due to COVID-19 restrictions, the UK’s Environment Bill all but completed its progress through the House of Commons, and was then subject to a ‘carryover motion’. This suspended its further consideration during this session of Parliament, and allows the next session to take up where they left off, with the Bill on its way to the House of Lords. This may result in the Bill not receiving further detailed consideration until the summer of 2021, with Royal Assent in the autumn – hopefully before the COP26 climate talks. It would look strange for the UK to be urging world leaders to greater efforts towards protecting the global environment, while neglecting the environment at home.
The government’s reasoning was that COVID-19 had caused such lengthy delays in the Bill’s consideration that without this measure it could get caught up in the end of the current Parliamentary session, which results in all uncompleted legislation falling.
Rebecca Pow, minister at Defra, said that –
“We remain fully committed to the Environment Bill as a key part of delivering the
government’s manifesto commitment to create the most ambitious environmental programme of any country on earth. Carrying over the Bill to the next session does not diminish our ambition for the environment in any way.”
By contrast, the continued delay was roundly criticised by environmental groups. Greenpeace UK, Greener UK, WWF, Friends of the Earth all issued highly critical statements about the delay. These reflected frustration at the apparent lack of priority given to important legislation that should have been in place before 1 January 2021 to ensure continuity with the removal of the monitoring and enforcement powers of the European Commission and the Court of Justice of the European Union after Brexit.
The story so far
On 13 May 2019 we reported in an article on the highly critical reports of the House of Commons EFRA and EAC Committees on the initial draft Environment (Principles and Governance) Bill, arguing that the Office for Environmental Protection had to be fully independent, that principles should be reinforced, and exemptions from them limited, and that the original proposals for environmental governance were a “significant regression” from EU standards -
On 18 March 2020 we published an article on the critical deficiencies of the governance provisions of the Bill -
https://www.wyesideconsulting.com/news/environment-bill
This summarised the problems as follows -
“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.”
On 16 June 2020 we published an article showing how without amendment the Environment Bill would significantly lower standards of protection of air quality in England
On 20 October 2020 our article ‘Agriculture, Fisheries, Environment – will UK standards be a house of straw?’ drew attention to the pattern of strong resistance within government to legally binding and readily enforceable standards in key environmental legislation, whether this was to do with allowing for maximum flexibility in future trade talks or political preference -
The Environment Bill in the House of Commons
In the Bill’s passage through the House of Commons, the government passed a number of its own amendments and additional clauses. Some, such as the new provisions on forest risk commodities – restricting the use in the UK of commodities derived from deforestation from agriculture overseas – have been widely welcomed as significant improvements. Wildlife conservation provisions have also been enhanced. There are many important provisions in the remainder of the Bill, including these provisions on conservation covenants, and on biodiversity net gain, which environmental groups are keen to see enacted.
However, almost all the new provisions concerning the Office for Environmental Protection have further limited its independence, the scope for its environmental reviews, its powers to intervene in or initiate judicial review proceedings, and there is now even a power for the Secretary of State to be able to issue guidance to the OEP about its enforcement policy.
No opposition amendments or new clauses were added to the Bill or agreed (see House of Commons Library Briefing 21 January 2021). Opposition amendments which went to a division but were defeated included –
aiming to enshrine World Health Organisation air quality targets on particulate matter on the face of the Bill;
aiming to remove the exemptions from the need to have due regard to the new policy statement on environmental principles;
aiming to ensure greater independence for the OEP in its budget setting and appointment of its Chair;
aiming to widen the definition of “natural environment” in the Bill to include the historic environment;
aiming to require manufacturers, processors, distributors and suppliers of packaging to contribute to “social costs” (and not just disposal costs) incurred throughout the lifecycle of the products or materials;
aiming to require an assessment on water quality and the impact of discharge in drainage and sewerage management plans;
aiming to set the new requirement of a 10% biodiversity gain as a minimum; and
aiming to ensure that the starting regulatory framework for UK REACH (chemicals regulation) was as close as possible to EU REACH and did not “regress from what was there before”.
Opposition new clauses were proposed and defeated on areas including: non-regression of environmental standards, fracking, a clean air duty, smoking related litter, the waste hierarchy, environmental and human rights due diligence, reservoirs and flood risk, a state of nature target, and reduction of lead poisoning from shot.
There is little doubt that the Environment Bill is a turning point in the whole application of environmental law following Brexit. It represents the first (and probably the last for some years) Parliamentary opportunity for an expression of the “UK’s” collective view of the level of environmental protection that it actually wants. In the next article in this two part series, we will look at the way that two House of Commons Select Committee Chairs, Philip Dunne MP and Neil Parish MP are taking on the battle to improve river quality and air quality, and we consider the implications of that for the Environment Bill.