England’s post-Brexit environmental law still has a way to come
Britain’s wildlife is disappearing at a terrifying pace – from hedgehogs to bees, numbers of wild creatures are plummeting. The UK is now one of the most nature-depleted countries in the world.
But as we leave the EU, we face a pivotal moment. And we have a choice.
Things could get even worse; we could fail to adequately replace the important EU bodies that enforce our environmental laws, setting our nature on the path to even steeper decline.
Or things could get better; with the right course of action, nature in the UK could be restored to its best. With natural habitats and wildlife populations recovering, with the clean air, healthy seas and fertile soils we demand, we could position ourselves to lead a global deal for nature around the world.
The draft Environment Bill published on Wednesday marked a serious test of the government’s ambition. Our Executive Director for Advocacy and Campaigns, Tony Juniper, assesses which path our government is taking.
As Brexit uncertainty continues, domestic arrangements to protect our environment after the UK leaves the EU will be vital to get right. Central to how this will work are provisions set out in a new Environment Bill, a draft of which was published this week.
The draft Bill marks a significant victory for Michael Gove in his battle for a greener Brexit, against others in government who are looking to slash and burn environmental ambition after the UK leaves the EU.
Areas to be welcomed include the proposed legal underpinning of the 25 Year Environmental Plan, a commitment to reverse the loss of nature and the aim of putting environmental ambition and accountability at the very heart of government.
We must, however, be in no doubt that the Bill still has a long way to go if the Government is to uphold the promise to leave nature in a better state for the next generation. This is why WWF will be campaigning for serious improvements in certain areas as the Bill passes through Parliament. This includes legally binding targets for the restoration of nature, a truly independent environmental watchdog and a duty to reduce our country’s global footprint.
One reason why the draft Bill is better than might have been expected, and why Michael Gove’s hand was strengthened, was because of the huge number of voices backing strong laws. Tens of thousands of WWF supporters were among those writing the 176,746 responses received during the consultation period. So many of us speaking out in support of UK nature made a critical difference and we’ll need to maintain and increase that momentum going forward.
Some of the key issues that we will need to focus on include matters relating to the new watchdog, questions about the environmental principles included in the Bill and the level of ambition linked to environmental improvement in the future.
The new watchdog
One of the most talked about elements in advance of the Bill was the new environmental watchdog, the body set up to enforce our environmental protections - replacing the enforcement currently provided by The European Commission and the European Court of Justice which between them investigate complaints from the public, stop unlawful activity and, where necessary, take legal action.
For instance, in 2012 WWF made a complaint to the EU because of the UK’s failure to properly protect harbour porpoises. Subsequent intervention by the EU and the threat of the European Court of Justice forced the UK governments to take action and thanks to that the UK now has six special areas of conservation for harbour porpoises, covering around 70,000 square kilometres of sea. If the UK is to protect its environment after leaving the EU, all these functions will need to be replicated by the new watchdog. After all, our environmental laws are only as strong as the body that enforces them.
The draft Bill sets out plans for a new ‘Office of Environmental Protection’ (OEP). But disappointingly, this office will lack true independence from government. Environmental organisations have repeatedly pointed out how we need to see the establishment of a truly independent and fully funded body, one focused on long-term and robust environmental protection and with real teeth and powers.
The Bill as drafted gives ministers control over the OEP’s funding and board members, with the Secretary of State providing a budget. This means the OEP will essentially be within the control of the Government – the same Government it is meant to be holding to account. This does not bode well for the long-term effectiveness and sustainability of the OEP - particularly if we look at how official wildlife agency Natural England has during the past several years been starved of cash and sidelined in decision making.
While there are some positive elements to the draft Bill – for example in the OEP being able to set its own strategy and investigate citizens’ complaints – ultimately though if we’re to uphold our environmental laws and protect our nature we’ll need an environmental watchdog with both a fiercer bite and greater freedoms than presently provided for. The OEP must for example be able to act independently from government, so that it can stand up for citizen’s complaints and all environmental wrong-doing, including through an easily accessible judicial system.
EU environmental law has been hugely important. As a result of rules negotiated with European partners we have for example enjoyed elevated standards in relation to pollution control, waste disposal and recycling, there is stronger regulation of chemicals and dangerous substances, wildlife protection is tighter and more recently there has been European level action on climate change. All these have been backed by well-recognised principles, such as the need to act with precaution and that the polluter should pay, and these must apply into the future too.
WWF wanted the draft bill to put these environmental principles on the face of the Bill and Ministers have done that. While this is to be welcomed, we dislike the fact that the Secretary of State will determine how the principles will be interpreted.
There is also a ‘get out of jail free card’ in that the Secretary of State can exempt the application to principles where he considers there would be no significant environmental benefit to the development or revision of policies. This is not equivalent with the EU, where the principles are applied as objectives to be achieved by EU policy.
Environmental Improvement Plans
The Bill places a duty on the Secretary of State to prepare an environmental improvement plan. In effect, this provides a statutory underpinning for the Government’s 25 Year Environment Plan. This is to be welcomed and is a big step towards underpinning legislation for reversing the loss of nature.
It is, however, not enough. As well as the need to have a clear plan, this must be adopted as a means to achieve the more important duty of actually restoring nature across the country. Progress against that overall duty to improve the environment must be judged against a series of official targets, which also need to be set out in the new law.
A First Step
Ultimately, the Bill is a first step, providing the framework through which Parliament must now build momentum. We need to see an overarching duty to restore nature (going beyond merely plans), an environmental watchdog sufficiently independent and with full powers to hold the government to account, and an obligation to reduce the UK's global environmental footprint.
If this bill is improved during the coming months, it could mark an act of real leadership at a time when our seriously threatened planet needs it most.
We will be campaigning for the Bill to be improved and we hope that you will join with us and the other conservation and environment groups in making sure that we achieve the kind of law that our children and grandchildren will be proud of and will thank us for.