This post was first published by Business Green, and is written by Lord Krebs, an independent crossbench peer in the House of Lords.
The decision to leave the EU raises many fundamental questions, not least of which is how to ensure the rights and protections we currently enjoy are not lost as a result. Eighty per cent of our environmental law stems from the EU.
The House of Lords is currently debating the EU (Withdrawal) bill, intended to provide legal continuity as the UK leaves the EU. It is the most significant constitutional bill since that which led to our membership of the Common Market. While not immediately apparent, the bill has major implications for our present systems of environmental protection.
In its current form, the bill omits key elements of the body of EU environmental law which are needed to ensure future protection. It also fails to deliver the necessary arrangements to ensure that the public can effectively hold the government to account.
I have spent much of my career working on environmental issues, as a research scientist, as Chief Executive of the Natural Environment Research Council, and as Chairman of the Adaptation Sub Committee of the Climate Change Committee, so ensuring post Brexit environmental protection is very high on my agenda.
Parliamentary interest is high
There has been significant parliamentary interest in fixing the bill in both the House of Commons and the House of Lords. In the House of Commons a cross-party group of MPs demanded clarity on how important environmental protections would be maintained.
Peers from all sides of the House of Lords have since taken up this cause enthusiastically. I have been working with other crossbench peers as well as representatives of the Labour and Liberal Democrat frontbenches, Conservative backbenchers and members representing the Greens and Plaid Cymru. We have also been working with Greener UK, a coalition of major environmental NGOs working to ensure that important environmental protections are maintained, and indeed improved, beyond Brexit.
We’ve been primarily concerned with amending the bill in three areas: legal certainty, ie ensuring that the full body of EU law is brought across; enshrining environmental principles, such as the precautionary principle, in law; and making sure the new green watchdog, which is needed to fill the “environmental governance gap” created by leaving EU institutions that are currently able to hold the UK government to account, is in place by exit day.
Encouraging noises, but…
The government is listening and promising to act. Environment secretary Rt Hon Michael Gove MP has indicated that Defra will publish a consultation early in 2018 on the scope, powers and functions of a new environmental watchdog as well as on a policy statement to provide guidance on how to apply the principles.
He has emphasised that the watchdog must be independent of government and placed on a statutory footing, so it has clear authority to champion and uphold environmental standards.
Last week Mr Gove told the Prosperity UK conference that he has agreed with the Scottish and Welsh Government environment ministers to draw up environmental principles that all parts of the UK will sign up to.
This is all, of course, welcome. But how long will these processes take? The oft-mentioned Defra consultation is yet to materialise and there is no firm commitment or timetable for the legislation to enshrine the principles and set up the new watchdog.
As yet, the government’s commitment to legislate has not extended beyond hints and hopes. At the conference last week Michael Gove said that “[if] we want to honour our pledge to leave the environment in a better state, we must also leave the statute book in a better place”. But this is still not a firm commitment and, as far as I am aware, it does not mean that the necessary parliamentary time has been secured.
I am also concerned that these laudable proposals will encounter cross-government resistance, highlighted by the recent joint select committee report on air pollution in which ministers from three departments (transport, treasury and local government) argued that such a watchdog was not necessary.
And, finally, there is the challenge of devolution. These issues are relevant for the whole of the UK and so must not be addressed on an England-only basis. Questions are: will the promised consultation be issued jointly with the devolved governments? And, how will the so-called continuity bills, currently racing through the Scottish Parliament and Welsh Assembly, deal with these issues?
The date of exit is little over a year away. With lingering uncertainty on whether there will be an implementation period, and, if so, how long it would be, time is running out to put the necessary arrangements in place.
What happens next?
Detailed scrutiny of the Withdrawal bill will come to an end shortly before the Easter recess. When we return in mid-April we will enter the Report stage and, unless there has been an explosion of clarity and the government sets out a clear plan with an appropriate timetable, I believe there can be no alternative but to include the environmental principles and an obligation to set up the new watchdog in the Withdrawal bill. This would give civil society, industry and businesses the confidence they need that our statute book will be fit for purpose post-Brexit.