The Draft Environmental Bill is simply not enough
The draft Environment Bill was announced in the Queen’s speech on 14 October 2019. The bill is a result of terms under the European Union (Withdrawal) Act 2018, which requires the Secretary of State to publish a list of environmental principles to be followed in the UK alongside an independent body capable of taking proportionate enforcement action against bodies that liable for a failure to comply with environmental law.
Many sources, including ministers of government, have been optimistic about the scope of the Bill, claiming the widespread improvements it proposes to make to UK’s commitment to the environment. The government claims that the Bill aims to “maintain and improve environmental protections upon British exit”, by improving air and water quality, tackle plastic pollution and restore habitats so plants and wildlife can thrive. More specifically, the Bill proposes to protect natural habitats by supporting a Nature Recovery Network by establishing local nature recovery strategies and giving communities a greater say in the protection of local trees. In addition, it promises to reduce fine particular matter, PM2.5 and introduce further taxes on single-use plastic.
However critics of the Bill are unimpressed by these promises, many criticising it for its lack of clarity and unspecific aims. For example, though promises have been made to reduce fine particulate matter of a particular kind (PM 2.5) in the air, no indications have been provided as to what the targeted level will be and how such promise will be implemented and monitored. In this light, promises made by the Bill became more obscure and make it difficult to say with certainty whether the Bill actually aims to adopt a more protective stance than existing EU law.
In fact, some MPs have expressed concerns that the Bill’s proposals will actually severely downgrade the environmental principles used to guide EU law and policy. This is quite the contrary to assertions from Government that paint the Bill in rosy-red. However, the sceptics are somewhat believable. Though the Queen in her speech announced that he Bill will ‘for the first time” enshrine environmental principles in law”, the reality is that the principles upheld in the Bill have already been enshrined in UK law by virtue of the EU treaties that promulgated them. In fact, the Bill will actually take these legal principles and turn them into mere matters of policy. In effect, this does the exact opposite of what the Government has advertised.
Further scrutiny on the Bill was done by Professor Maria Lee, from the UCL Centre for Law and Environment, who remarked that though the bill “is not without its strengths, especially around political… accountability… it enables the pursuit of an immediate de-regulatory agenda”. This assertion is strikingly true, given that the Clause 3(3) of the Bill sanctions the Secretary of State to lower standards when she is satisfied that meeting the target would “have no significant benefit” or when “because of changes in circumstances… the environmental, social, economic or other costs of meeting it would be disproportionate to the benefits”. This leaves the Secretary of State with a shockingly broad discretion to derogate from environmental standards. Though in doing so, the Secretary of State has to seek advice from independent and experienced bodies, none of the advice received from these bodies is publishable and so there is no record of the premise underpinning the derogation.
Another one of the Bill’s promising reforms is the establishment of the Office of Environmental Protection (OEP) as an independent watchdog to scrutinise environmental policy and law, investigate complaints and take enforcement action against public authorities to uphold environmental standards. The establishment of this body goes to the heart of what Lee commented about the Bill introducing a large amount of political accountability. However, the lack of legal accountability remains a worry in the functioning of this new institution. Under the Bill the OEP’s enforcement powers are triggered by a failure to comply with environmental law; Clause 26(2) defines a failure to comply as a “failure to take proper account of environment law when exercising functions”. This is problematic because the law is not merely something to be taken account of. It should be prescriptive and demand compliance. The Bill fails to encapsulate this important feature of the law with respect to the workings of the OEP, weakening the effectiveness of what could be a very useful addition to the development and monitoring of environmental law.
Overall, the Environmental Bill has potential to replace current EU standards with an equally strong, if not better, standard. However, the Bill in its current form has failed to meet the mark. Further consideration needs to be given to the specifics of the Bill and the ways in which it purports to secure the changes to the environment that the environmental and political landscape recognises and needs.
