This post is by Lord Robin Teverson, chair of the House of Lords EU Energy and Environment Sub-Committee.
Back in February 2017, our committee published the report of its inquiry on Brexit, the environment and climate change. While covering a wide range of issues, one of the key findings was the vital role that the European Commission and the Court of Justice of the European Union play in ensuring that member states (including the UK) comply with environmental legislation. We heard evidence that the effectiveness of EU regulation was due, in part, to the deterrent effect of the power of EU institutions to hold member states to account and to levy fines upon them for non-compliance. From recycling targets, to air quality plans, to nature conservation, we heard that the threat of EU infraction had shaped the UK’s environmental policy.
At the time of our inquiry, the government’s stance was that existing mechanisms – parliamentary scrutiny, elections and the UK’s court system – would be sufficient to ensure environmental law continued to be enforced post-Brexit. The committee disagreed, and argued for an independent domestic enforcement mechanism to fill the vacuum left by the European Commission. We called for this to include oversight of the government’s progress towards its environmental objectives and the ability, through the courts, to sanction non-compliance.
Two years is a long time in politics, and the government’s stance has shifted substantially. Its draft Environment (Principles and Governance) Bill, published in December, includes plans to establish an Office of Environmental Protection (OEP). Its remit would include monitoring and reporting on progress in implementing the government’s plans to improve the environment and responding to failures by public authorities to comply with environmental law. The latter would involve the OEP first issuing ‘information notices’, setting out concerns of potential failures to comply with environmental law; then, if not satisfied with the authority’s response, a ‘decision notice’ would be sent, detailing the steps the OEP considers the authority should take; finally, in the event of continued non-compliance, applying to the High Court for judicial review.
Critical areas where government plans could threaten future environmental standards
We welcome the government’s recognition that a robust new system of green governance is needed in the UK if we are to ensure that Brexit does not result in a weakening of environmental protection. And the proposals in the draft bill go some way to achieving this.
But, following a roundtable discussion with environmental lawyers, academics and NGOs, we have written to the secretary of state to urge him to strengthen these proposals in a number of critical ways. Without this, we fear the OEP will fall far short of what is required and we are concerned about the impact that could have on future environmental standards in the UK.
Independence
The draft bill would give the secretary of state the power to appoint the chair, and other non-executive members, of the OEP and requires that he or she is consulted on the appointment of the chief executive. The OEP’s funding would also come from the secretary of state, who is only required to provide “such sums as … [they consider] are reasonably sufficient to enable the OEP to carry out its functions.”
Given that one of the OEP’s functions is to hold the government to account (and, potentially, seek judicial review of their actions), we are not confident that the current model would ensure the OEP has the independence it needs. The government cannot be seen to mark its own homework. The committee is, therefore, urging parliament to be given a greater role in appointments and funding allocation, and for a model akin to the National Audit Office to be considered.
Remit
The draft bill, and accompanying notes, exclude a number of policy areas from the OEP’s remit, including forestry, flooding and, most notably, climate change. While acknowledging that the Committee on Climate Change already monitors progress on emissions reductions and carbon targets, it has no enforcement powers and so excluding climate change from the OEP creates an obvious gap compared to the European system of oversight. We are urging the government to reconsider.
Timing
With only a few weeks to go until the UK could be leaving the EU, it is obvious that the OEP will not be ready in time for a ‘no deal’ Brexit. While it is hoped the body would be up and running by the end of any transition period agreed, the government must also prepare for ‘no deal’. The committee is, therefore, calling on the government to consider whether existing bodies could temporarily have their remits and powers increased to undertake some enforcement functions. This would require the allocation of additional resources and, just as importantly, changes in governance structures to ensure adequate independence. As we are now less than a month away from potentially needing such a system, I would hope that the government’s planning in this area is at an advanced stage but we await the secretary of state’s reassurance in this regard.
Membership of the EU has shaped UK environmental policy for decades. Regardless of what deal is or isn’t agreed on the UK’s future relationship with the EU, the government must match its words with actions and ensure that Brexit cannot result in environmental harm to the UK. Creating a truly independent, powerful watchdog is central to this and I will continue to press the government to seize this opportunity.
