Environmental principles and governance: the draft Bill

*April 2019 update*: Since the publication of this briefing paper the Environmental Audit Committee (EAC) and the Environment, Food and Rural Affairs Committee (Efra) have each published their pre-legislative scrutiny reports on the draft Bill:

• Environmental Audit Committee, Scrutiny of the Draft Environment (Principles and Governance) Bill, 25 April 2019.
• Environment, Food and Rural Affairs Committee, Pre-legislative scrutiny of the Draft Environment (Principles and Governance) Bill, 30 April 2019.

Government responses to these reports have not yet been published.

Following the UK’s June 2016 referendum result to leave the EU, concerns were raised both in Parliament and by stakeholders that environmental standards in the UK could be weakened. These included concerns that: a.) the enforcement mechanisms provided for by European Union institutions (and predominantly used in relation to EU environmental law) would be lost following EU exit; and b.) there would no longer be the same legal requirement to ensure environmental policy was based on environmental principles. The Government published a consultation on Environmental Principles and Governance in May 2018 with initial proposals to allay these concerns.

Section 16 of the European Union (Withdrawal) Act 2018 was introduced by the Government following debate in Parliament on the above concerns and the Government’s initial proposals. The Act required the Government to publish a draft Bill by December 2018 containing particular provisions on environmental principles and governance, including a specific list of environmental principles; and to set up a new body with powers to take proportionate enforcement action (including legal proceedings if necessary) where a Minister of the Crown was not complying with environmental law.

The Government published the draft Environment (Principles and Governance) Bill and a number of related documents on 19 December 2018. This draft Bill fulfilled the statutory requirements of section 16 of the EU (Withdrawal) Act 2018. On publication, the Government summarised the purpose and main features of the draft Bill as follows:

The draft Environment (Principles and Governance) Bill sets out how the government will maintain environmental standards as we leave the EU. It also details how we will build on the vision of the 25 Year Environment Plan.

This includes creating an independent body - the Office for Environmental Protection (OEP) – which will:

• scrutinise environmental law and the government’s environmental improvement plan (EIP)
• investigate complaints on environmental law
• take enforcement action on environmental law

The draft Bill commits the government to publishing a policy statement which will set out how ministers should interpret and apply environmental principles. It also commits government to have a plan for environmental improvement.

The draft clauses will form part of a wider Environment Bill, which has not yet been published. The Government has set out broadly the “wider ambition of the Bill” in “four other key areas: air, wildlife, water and waste”, which are likely to be included in the full Bill. The wider Environment Bill is expected to be introduced in the second Parliamentary session in 2019.

The ambition and aims of the draft Bill were broadly welcomed as a step in the right direction, but specific concerns have been raised on particular provisions, focusing on:

• the independence of the new body (the OEP), specifically that it will be funded by Defra and that the non-executive members of the board (including the Chair) are to be appointed by the Secretary of State;
• the lack of provision in the draft Bill to give the OEP the power to issue fines for a breach of environmental law;
• the strength of the duty on Ministers of the Crown to “have regard to” the policy statement on environmental principles and whether this achieves equivalence with the existing EU situation;
• the scope of a number of delegated powers given to the Secretary of State, including in relation to amending the definition of “environmental law” and to set out additional exemptions relating to “any other matter” from the scope of the policy statement;
• the exclusion of climate change mitigation (greenhouse gas emissions) from the scope of the definition of environmental law, and thus the scope of the OEP’s powers.

The draft Bill has undergone select Committee pre-legislative scrutiny. The House of Commons Environment, Food and Rural Affairs Committee and the Environmental Audit Committee launched a joint call for written evidence for pre-legislative scrutiny of the draft Environment (Principles and Governance) Bill on 20 December 2018.