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(21 June 2019) Client Earth announced a High Court challenge to the UK’s government Brexit legislation, more specifically over parts of a statutory instrument changing the habitat and species conservation regulation. This would give new powers to Ministers, allowing them to “alter and reduce standards for protected sites”. Stakeholders argue this change would represent a breach of the “green Brexit” promised by the UK government.

Dr Tom West from Client Earth fears government will continue using its power in this manner, thus requiring improved scrutiny from all fronts.

Client Earth article

The subject of the Office for Environmental Protection (OEP) dominates more than half of EFRA’s report, including detailed assessment and recommendations on the functions of the watchdog (appointments, funding, complaints processes, fines, territorial extent etc.). EFRA concedes that the UK cannot replicate EU’s governance framework, but emphasizes that the Government should take this opportunity to deliver the “world leading watchdog” promised by the Secretary of State.

The independence of the OEP appears again as a key matter of the future body. EFRA argues it must not be seen as “just another arm’s length public body attached to Defra”, especially since the OEP must hold the Government accountable for breaches of environmental protection. The status of a “non-departmental public body” is not considered sufficient, instead EFRA asks for a constitutionally innovative model (despite a lack of a precedent). This status is also not financially adequate, as it does not ensure budgetary independence. EFRA advises the Government to provide additional financial protections, through a multi-annual budgetary framework negotiated directly with the Treasury and then voted on by Parliament. The appointment procedure is also crucial for ensuring the OEP’s independence, thus EFRA finds it inappropriate for solely the Secretary of State to select a Chair and other non-executive members of the board.

On procedural aspects, EFRA finds it important for the OEP to be able to launch investigations into environmental law breaches even in the absence of a complaint. Fines are not seen as an adequate mechanism for enforcement, instead proposals are given to provide greater personal accountability. The distinction between the OEP’s two functions (advisory and scrutiny) must also be clarified, putting a focus on its duty to hold the Government accountable. The watchdog must not be overwhelmed with advisory matters, and this function should be kept at a high-level to avoid adopting functions currently undertaken by other UK specialist statutory bodies (e.g. the Environment Agency).

Pre-legislative scrutiny of the Draft Environment (Principles and Governance) Bill (April 2019), Environment, Food and Rural Affairs Committee (EFRA) House of Commons

The Environment, Food and Rural Affairs Committee (EFRA) of the House of Commons released last month a pre-legislative scrutiny of the Draft Environment (Principle and Governance) Bill. The main message of the report is that the environmental framework put forward by the Government does not match current EU environmental protections. The report also describes a range of issues that emerged during EFRA’s assessment and inquiries throughout January – March 2019.

In introducing the report, the Committee regrets not being able to assess the full Bill, as the final contents are yet to be published in the next parliamentary session. This has limited the scope of the inquiry and hindered a holistic assessment of the Bill. EFRA is therefore calling on the Government to allow enough reviewing time when they introduce the remaining clauses in Parliament.

Transposing environmental principles into the UK system continues to raise problems, chiefly the lack of an overarching principle, i.e. the EU’s objective of “a high level of protection for the environment”. The legal status of the principles (policy statements) is also questionable as it marks a regression from EU environmental principles which are legal provisions. Policy statements are weaker and can be easily revised. Moreover, these environmental principles place a weak duty on Ministers (with an obligation only “to have regard to”).

EFRA calls on the Government to consider rewriting some of the definitions provided by the Bill, notably on the “environment” which should be more holistic. Given the departure from the EU’s legal acquis, the report recommends including a reference to international law within the definition of “environmental law”.

Finally, the report stresses the importance of setting up a co-operation framework between the UK Government and the devolved administrations. This should entail common standards and principles, or even a specific mechanism of cooperation and data sharing in the event that separate environmental bodies are created at devolved level.