17 January 2019

The government has set out its plans for a new body to hold public authorities to account on environmental protection. The Draft Environment (Principles and Governance) Bill establishes the Office for Environmental Protection (the OEP), making it mandatory for subsequent governments to present environmental improvement plans, and gives a statutory footing to international principles of environmental law such as the precautionary principle and the polluter pays principle.

The draft bill is the first part of a larger environment bill with the remaining provisions to be revealed in the second Parliamentary session in 2019, at which point the bill will be introduced to Parliament for scrutiny. The reason for releasing the Environment (Principles and Governance) Bill in draft is to satisfy a legal obligation imposed on the government during the passage of the European Union (Withdrawal) Act 2018, as we explain below.

The bill heralds a new era of environmental governance in the UK outside of the EU and is designed to allay the concerns of those who worry that pressures to sign trade deals post Brexit will lead to a strong de-regulatory agenda for environmental protection. 

The OEP has echoes of the much-lauded Committee on Climate Change, the body established under the Climate Change Act 2008 to hold the government to account on its progress in meeting climate change targets. Some aspects of the draft bill have been criticised and there will no doubt be some interesting debates and proposals for amendments as the bill makes its way through Parliament. In this briefing we comment on the draft bill in its current form and consider what this could mean for the future of environmental protection in the UK.

Why does the UK need a new legislative regime for environmental principles and governance?

In short, Brexit. At the moment, much of the UK's environmental law comes from the EU, and the EU institutions (such as the European Commission, the European Environment Agency and the Court of Justice of the European Union) measure and monitor progress and, where necessary, hold the UK (and other member states) to account for both the implementation of environmental law and the delivery of environmental protection required by those laws. At EU level, there is the ultimate sanction of significant fines, but often political pressure is enough to ensure prompt rectification of non-conformities. The UK is generally good at the administrative tasks such as ensuring directives are implemented promptly and accurately. Where the UK has struggled more is around absolute targets for environmental protection. Take for example compliance with the Ambient Air Quality Directive, under which the UK is struggling to meet the limits set for nitrogen dioxide. There are no easy solutions to the air quality issues in the UK’s cities and the difficult choices are very much political (does a ban on older cars have a disproportionate impact on lowest income households; should taxpayers provide financial support for small businesses buying cleaner vans, etc.). Notwithstanding this, the European Commission referred the UK (along with France and Germany) to the Court of Justice in May 2018 for failure to take sufficient action to reduce nitrogen dioxide exceedances in the shortest possible time. Undoubtedly, this external governance puts pressure on member states to take action on these difficult issues when the temptation within short term political cycles might be to kick the can down the road.

Naturally, questions have been asked about who would hold the government to account outside of the EU. Yes, civil society and environmental NGOs will undoubtedly have a role to play, but there would be a significant hole in the UK's governance of environmental protection without something to replace (if not replicate) the role of the EU institutions.

There was also concern about the status of environmental principles such as the polluter pays principle and the precautionary principle. These principles are enshrined into EU law through the Treaties, but outside of the EU, the Treaties do not apply to the UK. 

To address this, the government had promised new legislation and issued a consultation in the early summer of 2018. At the same time, the European Union (Withdrawal) Bill was making its way through Parliament, and the strength of feeling within the UK over the protection of environmental law led a group of Members of Parliament to table an amendment to the government’s bill. In what is now section 16 of the European Union (Withdrawal) Act 2018, there is a requirement placed on the Secretary of State to bring forward primary legislation to set down 'provisions for the establishment of a public authority with functions for taking, in circumstances provided for by or under the bill, proportionate enforcement action (including legal proceedings if necessary) where the authority considers that a Minister of the Crown is not complying with environmental law' (section 16(1)(d)). The inserted section also requires this new bill to set down the environmental principles to which ministers of government must have regard in setting UK policy, and sub-section 16(2) goes as far as to set down a non-exhaustive list, including the ‘polluter pays’ principle, the precautionary principle and the principle of sustainable development. As a result, the government was compelled to follow through on its commitment (which, to be fair, it had already made freely) to bring forward new legislation. The draft bill is the result of this process.

What does the draft bill say?

Policy statement on the environmental principles

Generally speaking, English law is not known for putting broad principles onto the statute books. The rationale for legislative measures usually sits behind Acts of Parliament, to be gleaned from policy statements or Parliamentary debates. How are these principles to be used and applied?

To address this, the bill provides that while the environmental principles will be listed in statute, the Secretary of State must prepare a policy statement on environmental principles. During drafting of the policy statement, consultation from the relevant persons the government deem appropriate must be conducted. The purpose of the statement is to explain how the environmental principles are to be interpreted and applied by Ministers in the development and creation of their policies; it can be revised by the Secretary of State at any time.

The environmental principles outlined in the draft bill:

  • The precautionary principle
  • The principle of preventative action to avert environmental damage
  • The principle that environmental damage should be as a priority rectified at source
  • The polluter pays principle
  • The principle of sustainable development
  • The principle that environmental protection requirements must be integrated into the definition and implementation of policies and activities
  • The principle of public access to environmental information
  • The principle of public participation in environmental decision-making
  • The principle of access to justice in relation to environmental matters

Environmental Improvement Plans

An environmental improvement plan provides a legal obligation on this and successive governments to set out plans to improve the environment and people's enjoyment of the environment over a long term timescale (no less than 15 years). The 25 Year Environment Plan, published in January 2018, will become the first statutory environmental improvement plan. The bill provides for regular monitoring of progress and periodic review, and provision for consultation with stakeholders during reviews to consider whether further steps to improve the natural environment can be made. The plan in place will be monitored via annual reports on the implementation of the plan and these will consist of descriptions of what has been done to implement the plan and whether the environment has improved in the given time period. Metrics will, of course, be key to monitoring progress, and more work is to be done on metrics.

The Office for Environmental Protection (the OEP)

The OEP will be a new, independent body corporate, acting objectively and impartially. The bill places a duty on the Secretary of State to fund the OEP so that it can perform its functions. The chair of the body and other non-executive members will be appointed by the Secretary of State.

OEP functions will include:

  • To prepare a strategy which sets out how the OEP will achieve its functions
  • To avoid overlap with the Committee on Climate Change
  • Create a complaints and enforcement policy which prioritises cases which relate to conduct which has caused significant damage to the natural environment/human health and investigate complaints where there has been a failure to comply with environmental law
  • The power to take the government to court to enforce environmental law
  • To monitor progress in improving the natural environment in accordance with the current environmental improvement plan
  • To prepare a progress report for each annual reporting period which will be laid before Parliament and published
  • Advise on proposed changes to environmental law, or other matters relating to environmental matters, and publish such advice

Analysis and concluding thoughts

Without doubt, this is a significant change in the governance of UK environmental law. Businesses might question whether this matters to them, given that this bill is all about governance, not substantive environmental law. It is probably true that, day to day, the work of businesses, environmental compliance teams and environmental lawyers acting for business will carry on as usual. However, let’s not underestimate the importance of strong governance on the direction of travel of environmental law. If this draft bill becomes an Act of Parliament, it sets down a powerful safeguard for environmental protection – and more radically, enhancement - that will inevitably filter through to the substantive environmental law in the UK.

Yes, there are concerns, and the debates when the bill comes to be considered by Parliament will be interesting. Concerns have been raised surrounding the independence of the OEP as both funding and the appointment of OEP members is determined by the Secretary of State. As a result, questions are arising as to whether the OEP will be independent enough to scrutinise the government. The absence of an ability to raise financial penalties has also been raised a concern, however our view is that political pressure is often a more powerful tool to force change. In addition to this, there are all sorts of complications about where any money raised in fines would go and questions over the most productive use of that money, when of course, it all ultimately comes from the UK taxpayer. There are some broadly-worded caveats giving powers of the Secretary of State that will no doubt be scrutinised in due course. However, overall, this is a draft bill that goes a long way to plug the governance gap arising from the UK’s departure from the EU, and the foundations it lays will shape the future of UK environmental law for the next generation. Burges Salmon’s market-leading environment team will be monitoring the passage of the bill and will keep our clients and contacts updated. If you would like more information on this, or any other environmental matter, please contact Michael Barlow or your usual Burges Salmon contact. 

Key contact

Michael Barlow

Michael Barlow Partner

  • Head of Environment
  • Head of Water
  • Head of ESG

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