The Environment (Principles and Governance) Bill

Once we leave the European Union (EU) and regardless of the nature of the future relationship we negotiate, the Government says we will no longer be a party to the EU treaties or under the direct jurisdiction of the European Court of Justice.

While music to many people’s ears, it means we must replace the EU law that has governed us with domestic equivalents. The Government has also said that while new laws will largely mirror the EU legislation in place today, they will not necessarily be the same.

The laws that govern environmental protection are ones Ground & Water closely monitors. After all they cover, among other things: waste management, water resources and contaminated land.

On 18 December 2018 the Department for Environment, Food and Rural Affairs (DEFRA) published its draft Environment (Principles and Governance) Bill. The Bill includes provisions to maintain the level of environmental protection once the UK leaves the EU.

The Bill will apply to England. Clauses 1 to 4 will apply to Wales, Scotland and Northern Ireland in respect of the functions of UK Ministers only. Clauses 5 to 10 and 14 will apply to England only. The remainder of the Bill will apply to Wales, Scotland and Northern Ireland in respect of environmental matters that are not devolved.

A new Office for Environmental Protection

In the event the UK leaves the jurisdiction of the EU institutions before it has an alternative in place (probable in a ‘no deal’ scenario) the EU would still be able to act against failings which occurred after the UK’s date of exit, but before we have an alternative governance system in place.

To avoid a governance gap, DEFRA intends to implement three measures:

1. Establish an Office for Environmental Protection (OEP) which replaces the current European governance system on environmental protection.
2. Include the environmental principles, which are currently enshrined in EU law, into domestic primary legislation, alongside a duty to publish a policy statement outlining their interpretation and proportional application.
3. Give the 25 Year Environment Plan statutory status by introducing a series of duties on government to:

a. Prepare and update (at least every five years) a plan for improving the environment.
b. Report annually to Parliament on progress.
c. Develop and publish a suite of indicators and metrics on environmental change to help measure long-term progress towards the environmental goals.

DEFRA says the OEP will provide independent assurance of government’s delivery of environmental law and the 25 Year Environment Plan and impartial advice to support the development of improved measures for future application. It aims to ensure that the current level of accountability and environmental protection is not weakened after the UK leaves the EU, while providing for a wide range of additional social, environmental and economic benefits through improved policy.

The OEP would be able to receive complaints from the public that may relate to weak enforcement of environmental law. It would also be able to monitor the enforcement of environmental law itself. Where deficiencies in delivery or enforcement are highlighted, the new body would be able to open an investigation and use enforcement mechanisms where appropriate to ensure that environmental laws are being implemented effectively. In practice this means local authorities would be answerable to the OEP on most environmental matters.

The Bill defines failing to comply with environmental law as a situation where a public authority is found to have either, not taken proper lawful account of environmental law when exercising its functions, or it unlawfully exercised or failed to exercise functions it may have under environmental law.

The second definition is worth further explanation. DEFRA says where authorities are charged with establishing and implementing permitting regimes for different activities that can affect the environment. Failing to meet such requirements, or implementing them in a deficient way (for instance, by omitting certain prescribed activities or applying standards that are less rigorous than the law demands), could also constitute a failure to comply with environmental law. The obvious examples in practice are decisions regarding landfill and contaminated land.

Town and country planning

Town and country planning legislation will be outside the scope of the OEP. DEFRA says that individual decisions on housing are exempt from the legal duty to have regard to the policy statement on environmental principles as these have already been considered through the National Planning Policy Framework, which implements many of the environmental principles, such as the ‘integration’ principle and the principle of sustainable development.
However, where policy on large housing projects is set by Ministers of the Crown, it would be expected that the policy statement on environmental principles would be considered by the OEP explicitly in the consideration and design of the policy and approach.

DEFRA says direct effects of the Bill will only apply to government policy makers and authorities and by incorporating environmental principles into the Bill there is potential for the burden on businesses to be reduced by enabling businesses to access the principles in one place.

DEFRA has set out an initial approach on how the policy statement on environmental principles may look and operate. It is encouraging stakeholder views or comments on the approach. Note that opportunity to comment on the draft policy statement on environmental principles will be provided when the statement is published alongside the Bill. Responses may be sent to: [email protected]

Given the current uncertainty surrounding Brexit, Ground and Water will be keeping a close eye on developments affecting our industry. Unless there is a clear-cut decision on Brexit the draft Bill cannot start the Parliamentary process. It will then take time to implement it. It is therefore unlikely that its measures will be in place by the end of March, assuming the UK actually leaves the EU. Be sure to check this Blog for further updates.

Follow the link for the draft Environment (Principles and Governance) Bill