As Greener UK has already highlighted, the EU (Withdrawal) Bill is crucial in ensuring the protection of the UK’s environment. So we will be on high alert when MPs begin their detailed scrutiny of the bill in a little over a week.
It has some major deficiencies, including the omission of the environmental principles which underpin many of our strongest protections. We are also concerned about what we’ve called the governance gap: if we break off relations with some or all EU institutions, we have to replace their functions in the UK to be able to operate to the highest of environmental standards.
The government acknowledges the problems
On governance, collective understanding has grown rapidly. On 13 July, the government published a factsheet on environmental protections and the bill which did not admit to a governance gap and suggested that a combination of existing bodies, parliament and judicial review would be sufficient to hold it to account.
However, just a few days later on 21 July, Michael Gove gave his seminal ‘unfrozen moment’ speech on delivering a green Brexit, in which he said we must think about how we can create new institutions to demonstrate environmental leadership.
By the time of the Conservative party conference in October, he was more explicit, and pledged to address the governance gap and promised that answers would be forthcoming as the bill progressed.
In his evidence on 1 November to the Environmental Audit Committee, he went further still and committed to a consultation on a possible new body or bodies to enforce and uphold environmental laws once the UK is no longer a member of the EU. He also recognised the importance of a means to hold governments and other public bodies to account.
Labour, Green, Conservative and SNP MPs have supported amendments to the bill on this issue highlighting the cross-party agreement that the governance gap exists and must be addressed urgently.
Now they need to act fast
While this is all welcome, time is of the essence. The consultation Mr Gove referred to will have to be published urgently so that parliamentarians can consider what changes to the bill may be needed to establish the new arrangements, both on a permanent and interim basis. Otherwise, there is a risk that the consultation may end up in the long grass and the opportunity to make any legislative changes will be missed.
The framing of the consultation is also critical and requires a strong lead from the government. It should include clear principles to underpin the creation of new governance arrangements.
Any new bodies must, as a minimum, be independent of government; established under primary legislation; equipped with statutory powers including the ability to fine; adequately resourced; and accountable to relevant parliaments or assemblies.
It is also vital that the new arrangements contain an accessible mechanism to allow people to challenge breaches of the law, as they can do now via the European Commission.
Underpinning principles can’t be optional
Mr Gove also recognised the importance of environmental principles in his evidence to the Environmental Audit Committee last week. He didn’t question their inclusion in our environmental justice system; instead, he focused on how to do it, rather than whether it should be done.
These principles are extremely valuable. For example, the precautionary principle ensures that risks to people’s health or the environment are taken into account in decision making, even in the absence of full scientific certainty. This led to a precautionary EU-wide ban on the use of neonicotinoids on flowering crops to protect bees before it was firmly established that they were doing harm.
A number of MPs have proposed amendments to the bill that would help to maintain the force of the environmental principles in UK law after Brexit. We hope the bill committee will find the time to debate these thoroughly.
Pressure has also come from the Scottish government which has called on Michael Gove to maintain the environmental principles post-Brexit or risk undermining the substantial international progress Scotland has made.
Michael Gove said he wants to explore embedding the principles in policy, rather than law. Including them in policy guidance would be a straightforward process, but the option of least resistance is not always the one guaranteed to give the best results.
We’re concerned that including the principles within policy guidance would make them seem optional and would not provide sufficient legal certainty.
This is what we think the government needs to do to show strong leadership:
- Publish an early consultation on new institutions and set out the key principles that should underpin our future governance systems.
- Engage in debate on how to ensure the environmental principles are maintained with sufficient certainty post-Brexit.
- Commit to looking at other gaps in the bill, notably the need to fully retain and secure the future status of environmental law
We’ve reached a critical point. The bill is about to be debated. Environmental issues are on the agenda. Michael Gove has made some positive statements. But the battle is not yet won. We now need firm and enduring commitment from the government to strengthen the bill and seize this once-in-a-generation opportunity to protect and enhance our environment.
Photo by Florian Culka.