The government’s guessing game on future environmental governance
This blog was first published by Business Green.
On 6 November, the Environmental Audit Committee published the government’s response to its report into the 25 year environment plan and Defra’s consultation from earlier this year on environmental principles and governance.
Ahead of the draft Environment Bill, there was always the possibility that the UK government would choose to reveal little in its response to the committee. This was indeed the case with the government instead preferring to keep its powder dry until it publishes the draft in the next few months. But the government’s response does raise five key questions which it must address if it is to hold firm on its commitment to strengthen environmental governance and protections as the UK leaves the EU.
How will government ensure that the new environmental body is independent and has teeth?
The government recognises the importance of a strong and objective voice to champion and enforce environmental standards. It believes the most appropriate approach would be to create an independent body accountable to parliament. The Greener UK coalition of environmental organisations agrees.
Recreating the roles played by the European Commission and Court in a domestic setting is undoubtedly challenging. The body must have recourse to an effective and sufficient range of remedies and sanctions to be able to fulfil its purpose and functions. And it must be truly independent of government, which will require civil servants to test the boundaries of the usual conventions of setting up new public bodies.
There are good examples, both domestically and overseas, where the independence of regulators has been enshrined in law, with the crucial processes of funding allocations, strategy development and board appointments are managed without interference from ministers. We will be looking for government to build this into the Environment Bill.
Will environmental principles be robustly protected in the future?
There is little, in the government’s response, to give comfort to those seeking a robust future application of environmental principles. It’s a case of wait and see. Will the government and public authorities be required to apply the principles, as is currently the case, or will the duty be watered down to the much weaker ‘have regard to’? It also remains unclear when parliamentarians and stakeholders will be able to input to the draft policy statement on principles. It’s essential that more information is made available so that the policy statement can be considered while the Environment Bill is passing through parliament.
How will the government convert warm words on four nation working into concrete action?
In its response, the government says it would welcome the opportunity to co-design proposals with the devolved administrations to ensure they apply more widely across the UK, taking account of the different government and legal systems in the home nations. It says the creation of a UK body would be welcome but at this stage no devolved administration has agreed this.
Relevant consultations in Scotland and Wales are delayed but are expected shortly, so the first quarter of 2019 should offer an opportunity for cross-government consultation on their respective proposals. With the EU insisting on strong ‘level playing field’ provisions in return for a close future relationship, the question of UK-wide governance could well rear its head in this context. It is therefore imperative that stakeholders are involved fully by governments in the development and testing of proposals.
Can cross-departmental hurdles be overcome?
With reports emerging of a newly opened rift between Defra and the Treasury, time is running out for Whitehall to get its collective act together. Similar concerns emerged during debates on the EU (Withdrawal) Bill, and the Treasury appears to remains at odds with advice of the business community, which is steadfast in its support for a bill that includes legally binding targets. The sooner the Treasury embraces the economic and societal benefits of well designed and properly enforced environmental regulations the better.
The government’s response references the Treasury’s support for the 25 year environment plan, saying that it takes long term sustainability seriously. But this falls far short of the cross-Whitehall consensus that will be needed for the bill to pass.
How will the government deliver the ambitious bill the prime minister has called for?
In announcing the Environment Bill, the prime minister hinted at ambition, subsequently confirmed in this latest government response and by Defra minister George Eustice in the agriculture bill committee. These commit to a new ambitious Environment Bill, early in the second session of this parliament.
This is welcome. But the draft bill and the ensuing pre-legislative scrutiny are likely to only relate to the new environmental body and environmental principles, because this is all they’re legally required to do under the EU (Withdrawal) Act. Question marks remain over how parliament and stakeholders will be able to help the government realise its quest for ambition on the wider content of the bill.
The government has recognised that our natural environment is struggling. It has sought measures, such as in agriculture, to tackle the trends of decline. But to leave a lasting green legacy, ministers need to introduce legally binding targets within the framework of the Environment Bill. This is not a ‘nice to have’; it is an essential test of the depth and authenticity of the government’s commitment to protecting and enhancing our environment for the generations to come. The sector stands ready to help by championing and, where necessary, challenging the bill.