MPs call for urgent action to plug gaps in environmental protection post-Brexit

The Environmental Audit Committee’s pre-legislative scrutiny of the Draft Environment (Principles and Governance) Bill identifies serious concerns with proposed legislation to protect the environment if the UK leaves the European Union. The Report describes the Bill as lacking coherence, with many Government Departments exempted from their environmental responsibilities.

Areas where MPs consider the Bill to be deficient: 

• Environmental principles which guide European Union legislation and policy have been “severely downgraded”
• There is no Government agency with responsibility to enforce climate change mitigation measures. MPs believe enforcement of climate change mitigation has been “purposefully excluded” from the scope of the Office of Environmental Protection (OEP)
• Lack of environmental accountability for action by Government Departments

MPs were concerned they had only seen sections on principles and governance and were unable to assess the full implications of the Bill for the environment.

Environmental Audit Committee Chair Mary Creagh MP said:

“If we want to be a world-leader in environmental protection, we need a world-leading body to protect it. The Government promised to create a new body for governance that would go beyond standards set by the European Union. The Bill, so far, falls woefully short of this vision.

“Far from creating a body which is independent, free to criticise the Government and hold it to account, this Bill would reduce action to meet environmental standards to a tick-box exercise, limit scrutiny, and pass the buck for environmental failings to local authorities. 

“It’s shocking that enforcement to act on climate change has been deliberately left out of the remit of the OEP.

“The draft Bill means that if we leave the EU we will have weaker environmental principles, less monitoring and weaker enforcement, and no threat of fines to force government action.”

Environmental principles ‘downgraded’:

• ·        MPs found that environmental principles, used to guide current European Union legislation and policy, have been severely downgraded by the proposals in the Bill.
• ·        A principle that would set a legal requirement for policy and all public bodies to seek to ensure a high level of environmental protection and a presumption that environmental protection would not be reduced after leaving the EU has been left out of the list of principles in the Bill. Evidence to the Committee described this absence as “striking and surprising”.
• ·        The EAC had called for the Bill to require that “all public bodies to act in accordance with the principles” and consider it troubling that the Government has ignored this recommendation.

Office for Environmental Protection (OEP)

• ·        EAC’s recommendation in its 25 Year Plan report called for the new body to be accountable to Parliament with a statutory body of parliamentarians, modelled on the Public Accounts Commission, to set its budget, scrutinise its performance and oversee governance. 
• ·        Evidence given to this inquiry supported a greater role for Parliament with many witnesses suggesting that an arm’s length body would not be independent enough to hold Government to account.
• ·        The Committee heard evidence from the National Audit Office warning of the risks to the OEP’s independence in practice or in perception because it was funded by Defra, and its Chair appointed by Defra’s Secretary of State.
• ·        The Report finds that the Government has failed to provide enough evidence that it will give the OEP the independence it needs.
• ·        The Committee stands by the previous recommendation that the OEP should report to Parliament.
• ·        MPs conclude that Parliament must be given a greater role in the appointments process with a Parliamentary Committee having a veto over the appointment of the OEP's Chief Executive or Chair. 
• ·        The Government should commit to a 5-year budget for the OEP, with an estimate negotiated directly with the Treasury and voted on by Parliament.

Climate change ‘gap in enforcement’:

• ·        MPs criticise the decision to exclude greenhouse gas emissions from the definition of environmental law. As a result, the OEP would have no enforcement function for climate change mitigation, creating an enforcement gap if we leave the EU as this function is undertaken by the European Commission and the Committee on Climate Change has no enforcement powers. The Report calls for the Government to ensure the OEP has climate change mitigation in its remit.

Enforcement Powers:

• ·        The OEP enforcement powers are limited to administrative compliance rather than achieving environmental standards, a departure from the enforcement procedure of the European Commission. On failures by public authorities to comply with environmental law, the scope for enforcement action was "very tightly drawn" leaving the OEP with “little to get its teeth into". Under these provisions, the threshold for failure would be dominated by questions of procedural lawfulness.
• ·        Unlike the approach of the European Commission, the Bill shifts responsibility for failing to comply with environmental law to individual public authorities, rather than the whole of Government.
• ·        The whole of Government must be accountable for the achievement of environmental standards and targets, rather than individual public authorities, as is the case with the European Commission's infraction procedure. This would require different areas of Government (central, local and public bodies) to work together cooperatively to address and rectify an environmental problem.

Exclusions ‘absurd’:

• ·        MPs are also concerned that a policy statement on environmental principles would allow the Secretary of State to exclude policies considered “not relevant” or with “no significant environmental benefit”.  They also criticise further exclusions to policies relating to the armed forces, defence or national security, taxation, spending or the allocation of resources within Government, or "any other matter specified in regulations made by the Secretary of State".
• ·        The Environment Agency considered such exclusions would mean the principles would cease to have "a meaningful influence on the development and application of environmental policy and law after EU Exit" while an environmental Barrister described the exclusions as “absurd”.
• ·        The Report calls for exclusions to the application of the principles to be ‘very narrowly defined’. The Bill should specify that the Ministry of Defence as a landowner is not excluded, nor should general taxation or spending be excluded, since many environmental measures depend on changes to the tax system.
• ·        The Report calls for the environmental principles to be put on an unqualified legal basis in relation to environmental policy with all public bodies having a duty to apply them as is currently the case under EU law.

Scope of bill ‘disappointing’ on Devolution:

• ·        MPs describe the scope of the Bill, largely limited to England, as disappointing given that UK-wide cooperation would enable more efficient and coordinated action. They welcome that the oversight body would have jurisdiction in Northern Ireland. 
• ·        The Government must now set out how it will practically achieve this and how oversight will be coordinated with equivalent arrangements in Scotland and Wales.

Withdrawal Agreement:

• ·        Should the Withdrawal Agreement be passed, the UK will conform to EU legislation on customs, taxation, the environment, labour law, state aid and competition.This includes a non-regression clause on the environment, meaning that environmental protection will not be weakened from current EU standards. The Government has confirmed that the Bill’s proposals do not yet meet the non-regression clause and it will consider the provisions of the Withdrawal Agreement before it publishes the final Bill.
• ·        The Report calls for a significant upgrading in the Bill to meet the non-regression requirements of the Northern Ireland protocol to the Withdrawal Agreement and would require cooperation with the other Devolved Administrations. MPs conclude that without implementing the recommendations already presented in this report, on independence, funding, the principles and enforcement, the Government will fail to meet its obligations under the Withdrawal Agreement.

No-deal:

• ·        In the event that the UK leaves the EU without a deal, there will be not be a transition period and therefore there will be a gap between the jurisdiction of the European Court of Justice ending and the OEP being set-up.
• ·        While the Government has said an interim secretariat would be established, its projected staffing of 16 would leave a significant governance gap.
• ·        The Committee calls for the Government to set out what functions the interim OEP would undertake and what retrospective powers it would have as soon as it is established to allow for active scrutiny. It calls for clarity on interim arrangements for Northern Ireland.