10 January 2019
There has been wide concern across the environment sector that there could be an environmental ‘governance gap’ when the UK leaves the EU.
Currently EU bodies, such as the European Commission and the European Court of Justice play an important role in implementing and enforcing EU derived environmental laws across the UK. These laws, and how they are interpreted, are currently shaped by the EU environmental principles, which are designed to ensure high environmental standards.
These governance structures and environmental principles will no longer apply after Brexit.
On 19 December 2018 the UK Government published its Draft Environment (Principles and Governance) Bill 2018 (‘the draft Bill’) to address the governance gap. Aspects of the draft Bill apply in Wales but only in relation to reserved matters. However, the scope of the draft Bill could be extended to cover devolved areas if the Welsh Government choses to adopt a joint approach with the UK Government.
The environment sector in Wales is awaiting the Welsh Government’s approach.
This blog post explores the UK draft Bill and what it could mean for Wales.
The Research Service’s previous blog posts provide a background to the issues: Environmental governance post-Brexit: closing the ‘governance gap’; and The future of the EU’s environmental principles: Wales’s unique role.
The UK Environment Bill?
The UK Government is expected to lay an Environment Bill in September 2019. This Bill will include environmental principles and governance; the draft Bill is a precursor to those provisions. Publication of a draft Bill on environmental principles and governance is a requirement of the EU (Withdrawal) Act 2018.
The House of Commons Environmental Audit and Environment, Food and Rural Affairs Committees launched a joint inquiry into the draft Bill on 20 December 2018.
What are the notable aspects of the draft Bill?
- The Office for Environmental Protection
The draft Bill proposes that a new post-Brexit environmental governance body is established, to be known as the Office for Environmental Protection (OEP). Defra announced that the OEP will be an independent, statutory environmental body that will hold government and public bodies to account on environmental standards, including taking legal action to enforce the implementation of environmental law where necessary. The OEP’s jurisdiction will apply across the whole of the UK. However, as the Bill is drafted, the functions of the OEP would only apply in respect of environmental matters that are not devolved. The definition of ‘environmental law’ (draft clause 31) does not include devolved legislation.
- The OEP’s enforcement capability
The OEP would be able to take legal action against public authorities in cases of a breach of environmental law. This goes further than the requirement set out in the EU (Withdrawal) Act which only applies to taking action against Ministers. However, the draft Bill includes no powers to levy fines (as is the case currently in the EU’s system of governance). The litigation powers of the OEP would be limited to judicial review. Citizens will have access to the OEP’s complaints system.
- The OEP and the Committee on Climate Change
The definition of ‘environmental law’ in the draft Bill excludes greenhouse gas emissions and therefore climate change mitigation is mostly outside of the OEP’s scope. The UK Government’s summary of responses and government response to the consultation highlights that a ‘significant majority’ of responses considered that climate change should be within the scope of the new body. The UK Government said it will ensure the ‘vital role’ of the existing Committee on Climate Change (CCC) is protected and that the OEP and CCC would be required to coordinate in their work to avoid overlap.
- The environmental principles
A series of environmental principles are proposed on the face of the draft Bill, a requirement of the EU (Withdrawal) Act. The list includes ‘Sustainable Development’ which already applies in Wales through the Well-being of Future Generations (Wales) Act 2015.
The draft clause states that Ministers of the Crown will ‘have regard to’ the principles when making decisions. The principles won’t apply to public spending decisions or ‘any other matter’ specified by the UK Government. The draft Bill requires the publication of a statutory policy statement on the interpretation and application of the principles. This section applies to the whole of the UK in respect of the functions of UK Government Ministers only.
- The Environmental Improvement Plans and targets
The draft Bill puts Defra’s 25-Year Environment Plan (for England) on a statutory footing and requires future governments to develop Environmental Improvement Plans. It requires the UK Government to set environmental targets, however these targets would not be binding. The UK Government would need to monitor progress against targets and report to parliament each year on the implementation of the plans. The UK Government would be required to collect environmental data needed to track progress. These provisions apply in England only.
How has the draft Bill been received?
Although welcoming the draft Bill, environmental NGOs have highlighted areas of concern.
The independence of the OEP has been questioned given that the draft Bill proposes that it would be funded by Defra and that its chair, and other non-executive members, would be appointed by the Secretary of State.
The limitation of the OEP’s litigation powers to judicial review and the absence of fines has been criticised as well as the exclusion of climate change from its remit. Stakeholders have also commented on the weak duty of ‘regard’ on Ministers in relation to the environmental principles.
What does the draft Bill mean for Wales?
The Welsh Government has previously committed to ‘take the first proper legislative opportunity to enshrine the environmental principles into law and close the governance gap’.
The Minister for Environment, Energy and Rural Affairs, Lesley Griffiths, has since been considering whether to create a Wales-only environmental governance body and Welsh principles or join the UK Government in establishing a UK-level approach. In correspondence to the Assembly’s Climate Change, Energy and Rural Affairs (CCERA) Committee (October 2018) she said the Welsh Government was considering the differences in the governance gap between England and Wales, and that a Welsh consultation would be launched in autumn 2018.
However, a Welsh consultation is yet to be published.
In the meantime, Secretary of State for Environment, Food and Rural Affairs, Michael Gove, continues to invite the devolved administrations to join Defra’s proposals:
Environment is a devolved matter, subject to a small number of areas that are reserved. In consequence, this Bill applies to England and to the UK for reserved matters. Overall, we recognise that protecting the environment is inherently an issue that cuts across boundaries, and we continue to welcome the opportunity to co-design with the Devolved Administrations, should they wish to join any proposals, to safeguard our shared natural environment.
It remains to be seen if the proposals will apply widely across the UK in devolved areas following the discussions between governments. If this is the case, the draft Bill’s explanatory notes state ‘the consent of the relevant devolved legislature(s) will be sought for the amendments’.
The views of Welsh stakeholders were gathered last summer during the CCERA Committee inquiry Environmental governance body and environmental principles post-Brexit. The inquiry report was submitted to both the Welsh Government and UK Government at the time of Defra’s consultation Environmental Principles and Governance after the UK leaves the EU. To stay up to date with what the Assembly is doing in relation to Brexit, you can follow the new Assembly and Brexit pages.
Article by Katy Orford, National Assembly for Wales Research Service